...delivers for her constituents, i.e., religious conservatives. This is why she was chosen, it had nothing to do with intelligence or legal competence: it was so she would exercise her power as a super-legislator on behalf of issues dear to religious conservatives, public health or the general welfare be damned. Governor Cuomo should declare the Court mistaken, and ignore the ruling. After all, if Justice Ginsburg had not died, this case would have come out the other way, as everyone knows. Her appointment in Samarra should not change constitutional law, a proposition even conservatives who profess commitment to the rule of law might agree upon.
January 10, 2022
The final version of the paper (which will appear in a symposium issue of the Georgetown Journal of Law & Public Policy) is now on SSRN. I've been gratified by the interest this paper has already attracted, and how useful many legal scholars, especially, have found the notion of epistemic authority. Here is the abstract:
The Internet is the epistemological crisis of the 21st-century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Instead, we rely on epistemic authorities—biologists and historians, for example. Epistemic authority cannot be sustained by empiricist criteria, for obvious reasons: salient anecdotal evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe about what. The traditional media were crucial, in the age of mass democracy, with promulgating and sustaining such norms. The Internet has obliterated the intermediaries who made that possible (and, in the process, undermined the epistemic standing of experts), while even the traditional media in the U.S., thanks to the demise of the “Fairness Doctrine,” has contributed to the same phenomenon. I argue that this crisis cries out for changes in the regulation of speech in cyberspace—including liability for certain kinds of false speech, incitement, and hate speech--but also a restoration of a version of the Fairness Doctrine for the traditional media.
January 03, 2022
Papers from an international conference last May are now out in Annals: Belgrade Law Review, with contributions by Pierluigi Chiassoni (Genoa), Tomasz Gizbert-Studnicki (Jaggellonian U, Krakow), Frederick Schauer (Virginia),Torben Spaak (Stockholm), and myself. My paper, "Back to Hart," can be downloaded here; the abstract:
The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”
Probably the most important claim is the last one about Ryle's influence on Hart's characterization of the "internal point of view." As I put it in the paper:
October 12, 2021
A draft of this paper is now available, which will be presented at Georgetown next month. It picks up on some ideas first mentioned in an earlier blog post and presentation in Turin, which generated a lot of interest: finally there is a shareable paper. Here is the abstract:
October 03, 2021
This paper may be of interest to some readers; the abstract:
This essay is part of a symposium on "The Most Important Contemporary Problem in Legal Philosophy." The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”
July 30, 2021
December 02, 2020
November 30, 2020
November 26, 2020
November 19, 2020
The myth that H.L.A. Hart had a "practice theory" of rules.
The myth that the so-called "normativity" of law presents a problem for legal positivism, let alone a special or interesting one.
The more recent myth that Hart made any kind of "category mistake" in his account of social rules or the rule of recognition.
October 08, 2020
"The Roles of Judges in Democracies: A Realistic View" is now out in Journal of Institutional Studies, and will also be reprinted in P. Chiassoni & B. Spaic (eds.), Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Springer, 2021). From the abstract (taken from the penultimate SSRN version):
What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.
"Critical Remarks on Shapiro's Legality and the 'Grounding Turn' in Recent Jurisprudence," is now up on SSRN; here's the abstract:
The essay discusses some difficulties in Scott Shapiro’s LEGALITY (2011). Many are well-known among specialists, but I set them out systematically here for the benefit of non-specialists. These include the mischaracterization of core jurisprudential questions in terms of “grounding” relations, which unfortunately erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept (cf. pp. 2, 10-13); but also the false claims that: (1) “knowledge of law is normative” such that to say X has “a legal right is to draw a normative conclusion” (cf. p. 15); (2) officials have a legal obligation to follow the rule of recognition (cf. p. 17); and (3) Hart commits a “category mistake” in his discussion of social rules (cf. p. 19). The essay also criticizes Shapiro’s discussion of jurisprudential methodology (pp. 3-8) and his (Dworkinian) attempt to show that the answer to jurisprudential questions matters to how courts should decide cases (pp. 13-14).
The SSRN version will remain on-line and is citable, but much of the material will probably migrate into my From a Realist Point of View (Oxford University Press, forthcoming in 2022 or 2023).
Finally, "The Naturalized Epistemology Approach to Evidence," (co-authored with Gabe Broughton, who is the lead author) is also on SSRN, and will appear in C. Dahlman, A. Stein, & G. Tuzet (eds.), Philosophical Foundations of Evidence Law (Oxford University Press, 2021). Here is the abstract: