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This article was commissioned by the then editor of the IVR Encyclopaedia of legal philosophy. The article surveys and critically evaluates "descriptive" approaches to legal theory in light of recent challenges to the possibility and usefulness of this approach to jurisprudence

Spanish language edition published by the National Autonomous University of Mexico Press in association with Hart Publishing in 2006, translated by Dr Juan Vega Gomez

ISBN: 1-84113-184-9

Fully peer reviewed encyclopaedia article discussing the nature of legal reasoning and, in particular, the role of interpretation and coherence in legal reasoning. The Stanford Encyclopaedia of Philosophy is an important reference resource for legal philosophers. 10000 words approx.

ISBN: 1095-5054

This article was commissioned by the editors of a festschrift volume of essays in honour of Professor Jim Harris' work. It examines and critically assesses Professor Harris' interpretation of the work of Hans Kelsen on the normativity of law.

ISBN: 0-19-929096-2

In the last three years the artist Kalliopi Lemos has constructed three large sculptures consisting mainly of boats used by illegal immigrants to cross from Turkey into Greece. These boats were discarded on the island of Chios, where Lemos discovered them. She exhibited these three sculptures in public settings in Athens, Istanbul and Berlin, with the respective titles: Crossing, Round Voyage and Crossroads. What is the meaning of this work? In this essay (which will form part of a forthcoming book on this trilogy, alongside essays by Arthur Danto and Thomas Pogge) Pavlos Eleftheriadis argues that art does not seek to resolve moral dilemmas, such as the dilemma posed by the competing claims of justice made by the illegal immigrants and the neediest of our own society. The power of art is in reminding us (in a way that does not deploy philosophical arguments but is equally or more persuasive) of the profound importance of our moral responsibility towards everyone.

ISBN: 978-3-86930-052-8

In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union - and the Eurozone within it - can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.

James Griffin’s rich and elegant study, On Human Rights (Oxford, 2008), is a superbly accomplished book. Its range is impressive. It offers a discussion of the general status of values, a general theory of rights, concrete accounts of the right to welfare, the right to privacy, the right to life, the link with democracy and the idea of group rights, among other things. At every stage we are treated to a clear, rigorous and elegant discussion full of broad learning and penetrating judgment, which readers of Griffin’s earlier books have perhaps learned to expect. Yet, the view of human rights that Griffin defends is strangely narrow and unfamiliar in that it is not connected to any political or legal framework.

ISBN: ISSN: 1835-6842

How is it possible that the idea of sovereignty still features in law and legal philosophy? Sovereignty is normally taken to refer to absolute power. Yet modern law assumes that power is exercised by officials constrained by legal rules and the rule of law. This essay argues that a closer look at sovereignty and law shows that the first impression is correct: law and sovereignty are mutually exclusive. Philosophically speaking, sovereignty is and has always been incompatible with the rule of law and with constitutional law itself. Sovereignty and constitutional government are mutually exclusive.

ISBN: 0167-5249

The UK Government’s Green Paper Rights and Responsibilities: Developing our Constitutional Framework, outlines a new proposal for a British Bill of Rights and Responsibilities, which may replace the Human Rights Act as the main constitutional statement of human rights in the United Kingdom. The Green Paper does not address squarely the role that rights play in protecting liberty. It does not deal with the modern literature on justice, liberty and democracy. The failures are surprising, given the significance of what is being proposed. The experience of modern constitutional law teaches us that we need strong and independent judges and clear public laws, if rights are to be effective. The Green Paper fails to do justice to this long tradition. By making our rights conditional on someone’s (and mainly the government’s) view of our own virtue, the government’s proposal, at least as it stands today, threatens to undermine some of the most central safeguards of liberty.

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This essay argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The coherence of European legal reasoning will be best preserved, if we consider that both the national legal order and the international (or European) such order endorse a sophisticated view of their own limits.

ISBN: 0952-1917

This essay argues that the universality claim is a claim concerning two different domains: first, the domain of the political and, second, the domain of foreign policy. The domain of the political gives us a theory of political rights as we find them in Rawls' Political Liberalism. The domain of foreign policy gives us a theory of human rights as we find them in Rawls' Law of Peoples. Both are distinct from a third domain, that of the moral relations of persons, where rights also are seen to have a bearing. We have therefore political rights, human rights, and moral rights. Only the first two enjoy universality. The distinction between the moral, the political and the international domains is crucial to the success of the claim to universality.

I address some implications of Joseph Raz’s ‘sources thesis’- the claim that the existence and content of any law ‘can be identified by reference to social facts alone, without resort to any evaluative argument’. By the sources thesis, there is a gap in the law whenever the law appeals to moral considerations. But contrary to Raz’s conclusions, I argue that gaps in the law do not necessarily confer discretion on judges. A legal requirement to apply moral considerations does give courts discretion, but only because (and to the extent that) moral considerations are vague.

ISBN: 0-19-924825-7

DOI: 10.1111/1468-0149.00252

Book review

ISBN: 0031-8051

The rule of law requires vague regulation in every legal system. The rule of law stands against arbitrary government and against anarchy, and vague rules are essential techniques to oppose both arbitrary government and anarchy. A general refusal to use vague rules would lead to anarchy because some forms of regulation cannot be performed at all by the use of precise rules. And precision, even when it is possible, can itself lead to arbitrary government.

ISBN: 3-03910-653-8

Surveys a number of influential constitutional provisions about freedom of religion, and argues that the recent literature (Dworkin; Eisgruber and Sager) contending that there is intrinsically nothing relevantly special about religion is mistaken.

Deploys an analysis of the relation between legal materials such as statutes and the propositions of law that those materials make true in order to show what are and are not the implications of moral teaching against supporting legislative proposals to permit acts that a state cannot justly permit.

ISBN: 0065-8995

Discusses Hart's Life, his contribution to the philosophy of law and social science and descriptive/explanatory political theory, and argues that his theory of the proper functions of law, in Law, Liberty and Morality, is misconceived (like Devlin's) because attending only to positive morality, which is substantially irrelevant to the issue.

Volume 3 of Collected Essays of John Finnis 22 published and unpublished essays with a 16-page Introduction, on the general theory of human rights; justice and punishment; war and justice; autonomy, euthanasia and justice; autonomy, IVF, abortion and justice; and marriage, justice and the common good

How should we understand Aquinas’s thesis that laws are universal propositions of practical reason? And should we accept the popular modern claim that to prefer one set of forms of human character, relationship, and conduct to certain others, and consequently to restrict the conduct of persons with those other preferences, is wrongfully to deny those persons’ equality of entitlement to concern and respect, and/or to insult them? Answering the first question involves showing how legal norms transcend the intentions of their makers, draw upon considerations of ‘natural reason’, and depend for their subsisting on the subsisting of the community whose norms they are. The conditions for the community’s subsisting turn out to depend, in turn, on aspects of the public good the upholding of which is an intention which absolves those who act upon it from Dworkin’s charges that they are flouting equality of respect and Raz’s charges that they are insulting those whose conduct those actions bear upon. Multiculturalism will often be a menace to public good, justice, and peace.

Same as Monist article of same title

essay on the justice of making and maintaining boundaries, and of forcibly overthrowing unjust (e.g. some pre-"colonial", "native") rulers.

ISBN: 521819717

Texts in Polish (translated) and English of public lecture, contrasting sound with Rawlsian senses of "public reason".

ISBN: 83p60077-07-X

Volume 4 of The Collected Essays of John Finnis 22 published and unpublished essays plus a 16-page Introduction, on foundations of law's authority; theories and theorists of law; legal reasoning; and the two senses of 'legal system'

19 published and unpublished essays with an Introduction of 15 pages on the nature and foundations of practical reason and associated legally relevant topics

ISBN: 978-0-19-958005=7

This philosophical, non-theological article argues that the default position for public reason in a just political community is that some religion may be true and it matters substantially for individual wellbeing and that community's common good that individuals be both (i) free from coercion in their inquiries about what is true about the transcendent source and point of everything, and in putting into practice what they believe they have discovered through such inquiries, and (ii) encouraged in such inquiries and religious practice.Coercion and/or discouragament by government and law or by private individuals or groups, is justifiable only when required for public order, that is, the rights of others, public peace and public morality.Religions which do not accept that there is such a right to religious liberty are a standing threat to public order and can, in principle, be justly discriminated against and their faithful adherents kept at a distance from our territory.Existing UK laws and judgments which discriminate in this way are in principle justified.

ISBN: 0658995

Employs a jurisprudential analysis of laws (or rules of law) as propositions distinct from the legislative or other statements by which they are enacted or otherwise laid down, in order to show that laws creating new legal restrictions on the permissibility of abortion do not involve their makers or supporters in approval of or complicity in making the law of the state permit the abortions left unprohibited by the new restrictions,

ISBN: 906561108

Performatively inconsistent, self-refuting propositions are not logically incoherent, or meaningless in themselves, or semantically paradoxical (such as “This sentence is false.”). Rather, because they have a definite reference, they are false because they are inconsistent with the facts that are given in and by any assertionof them. Thus they are not in themselves self-refuting, but to try to assert any of them is self-refuting. To show why this is so, one must show that performative inconsistency depends on the “implicit commitments” of the interlocutor. For example, what is entailed by “someone asserts that p” depends on what is meant by “assert.” As the concept of “implicit commitment” suggests, an assertion can beperformatively inconsistent only if it is located in a universe of rational discourse and is treated as an authentic contribution to such discourse. Thus sceptical arguments that aim to deny that knowledge is not a good are performatively self-refuting,for in asserting that p, one also asserts that one accepts (believes) that p is true. Itis absurd and self-contradictory to assert “p” if the assertion could imply “p, butin asserting this, I don’t care whether p is true or not.”

Analyses, with illustrative reference to Aquinas and Shakespeare, the four irreducibly distinct kinds of explanation of personal identity, which yield four basic senses of "personal identity" and kinds of way in which one is or can be the same though partly different. Special topics include marriage, humiliation, repentance, and decay.

ISBN: 521617677

Analyses, with illustrative reference to Aquinas and Shakespeare, the four irreducibly distinct kinds of explanation of personal identity, which yield four basic senses of "personal identity" and kinds of way in which one is or can be the same though partly different. Special topics include marriage, humiliation, repentance, and decay.

ISBN: 02650525

An extended critical notice of Amartya Sen's book The Idea of Justice.

ISBN: 1939-7917

DOI: 10.1415/34411

In this essay (published in Italian) we reflect on some general theoretical questions about disability, beginning with some absences of ability that are conventionally classed as disabilities (lack of vision, lack of mobility). We move from there to ask whether those of us who are conventionally classed as non-disabled in fact suffer from disabilities, and in particular whether there are disabilities shared by all humans. We reflect on the idea of the superhero, and also on whether it makes sense to envy the abilities of other species that are not shared by human beings. This leads us into a critique of species-relativism about value. We defend the thesis that all value is value for everything. This draws us into some reflections on the importance of ability and disability, and in particular on the practical importance for rational beings of that which they cannot attain.

ISBN: 1720-2396

DOI: 10.5235/204033210793524276

In this comment on Nigel Simmonds' book Law as a Moral Ideal, I take issue with Simmonds' interpretation of the work of H.L.A. Hart. I attempt to provide textual support for the view that Hart did find necessary connections - many of them - between law and morality. The bulk of the comment is devoted to exploring just one indirect necessary connection between law and morality that Hart may have noticed in The Concept of Law, viz. the connection from law to legality, from legality to justice, and from justice to morality. I find Hart surprisingly ambivalent about the last link in this chain, but do not find in this ambivalence any solace for Simmonds.

ISBN: 2040-3313

In this paper I discuss and reply to Malcolm Thorburn's important article 'Justifications, Powers, and Authority', Yale Law Journal 117 (2008), 1070. My discussion raises a wide range of conceptual and doctrinal questions about Thorburn's account of justification defences, and about the theory of justfication defences more generally. The paper also trespasses on some broader questions about the nature of law and its relationship to morality.

ISBN: 0841-8209

1: Law as a Leap of Faith (first published 2000) 2: Legal Positivism: 5 1/2 Myths (2001) 3: Some Types of Law (2007) 4: Can There be a Written Constitution? (2011) 5: How Law Claims, What Law Claims (2012) 6: Nearly Natural Law (2007) 7: The Legality of Law (2004) 8: On the Supposed Formality of the Rule of Law (previously unpublished) 9: Hart on Legality, Justice, and Morality (2011) 10. The Virtue of Justice and the Character of Law (2000) 11: Law in General (previously unpublished) The eligible chapters for REF2014 are 4, 5, 8, 9, 11.

ISBN: 978-0-19-969555-3

(pre-publication version)

ISBN: 1841132101

DOI: 10.1093/acprof:oso/9780199239351.001.0001

This is a collection of essays, some of which were first published before 2001 (pp. 1-56, 91-140, 201-238). In addition pages 155-176 were written with Timothy Macklem (50:50). Original versions of essays have been left intact to provide context for a newly-written concluding chapter, ‘Reply to Critics’, pp. 321-378.

ISBN: 978-0-19-923935-1

In this paper I raise some questions about the familiar claim, recently reiterated by James Griffin, that human rights are rights that humans have 'simply in virtue of being human'. I ask, in particular, how we are to read the words 'simply in virtue of'. Are we speaking of who has the rights (A has them if and only if he or she is human) or why they have the rights (A has them because and only because he or she is human)? Griffin brings the two readings together, as two sides of the same coin. He offers a (more or less) universalistic case for (more or less) universalistic rights. I try to show how the two readings can be driven apart, how the universality of human rights need not be undermined merely by there being no adequate universalistic case for them. On the strength of this discussion I suggest an inversion of the relationship that is often thought to hold between human rights and human dignity. In a way our rights give us our dignity, not vice versa. And in a way this helps to make the case for the universality of human rights.

ISBN: 1559-3061

DOI: 10.1007/s10982-010-9086-6

In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for.

ISBN: 0167-5249

Michael Moore and I agree about the moral importance of how our actions turn out. We even agree about some of the arguments that establish that moral importance. In Causation and Responsibility, however, Moore foregrounds one argument that I do not find persuasive, or even helpful. In fact I doubt whether it even qualifies as an argument. He calls it the ‘experiential argument’. In this comment I attempt to analyze Moore’s ‘experiential argument’ in some detail and thereby to bring out why it doesn’t help. In the process I raise some problems about the rationality of the emotions, which may be where Moore and I part company. We both believe that emotions should be taken more seriously by moral philosophy. But apparently we have radically different views about what this means.

ISBN: 1352-3252

Many legal and political philosophers think that common attitudes to authority impose powerful constraints on justification. In particular, they often think sceptical theories are objectionably inconsistent with the common view that everyone has a duty to obey the law. The most influential argument of this sort is due to David Hume, and it is his version that is here tested. The paper argues that common opinion lacks is less probative than Hume thinks, and that his related objections to consent theory fail. There is no reason to think our common views of political authority are as Hume, and many others, think there are. There is no reason to exempt widely-held common views about moral matters from scrutiny in light of the genesis of those views. There is reason to think that, in politics as in religion, what Hume called 'superstitions' are quite common.

Spanish translation of 'General Jurisprudence: a 25th Anniversary Essay'. Translated by Enrique Rodriguez Trujano & Pedro A. Villarreal Lizarraga.

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.

DOI: doi:10.5235/TLT.3.2.150

This paper contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a procrustean and monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. It is, of course, a philosophical book; but that is not enough to make it monistic. Some conjectures are offered as to why Simpson so badly misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.

This paper tests Brian Leiter's claim that the American legal realists were proto-naturalists in legal philosophy and were thus immune to objections based on claims that they offered defective analyses of legal concepts. It disputes Leiter's account of the core claim of realist thought, and reaffirms the view that some of them were indeed engaged in, or presupposed, conceptual work of a kind familiar to analytic jurisprudence. It explains how those who did not intend to offer conceptual analyses nonetheless made conceptual errors. It offers a fresh account of the basis of the realists scepticism, here deploying the idea of 'permissive sources' of law. The paper concludes with reflections on the preconditions and prospects for 'naturalizing' jurisprudence, suggesting that Hans Kelsen was correct to think that such efforts will either fail, or will simply change the subject.

Whatever else they do, all legal systems recognize, create, vary and enforce obligations. This is no accident: obligations are central to the social role of law and explaining them is necessary to an understanding of law's authority and, therefore, its nature. Not only are there obligations in the law, there are also obligations to the law. Historically, most philosophers agreed that these include a moral obligation to obey, or what is usually called “political obligation.” Voluntarists maintained that this requires something like a voluntary subjection to law's rule, for example, through consent. Non-voluntarists denied this, insisting that the value of a just and effective legal system is itself sufficient to validate law's claims. Both lines of argument have recently come under intense scrutiny, and some philosophers now deny that law is entitled to all the authority it claims for itself, even when the legal system is legitimate and reasonably just. On this view there are legal obligations that some of law's subjects have no moral obligation to perform.

Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p. 157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction. Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

Why is it that toleration can be uncomfortable for the tolerated? And how should tolerators respond to that discomfort? This paper argues that properly directed toleration can be deficient in its scope, grounds or spirit. That explains some of the discomfort in being tolerated. Beyond this, the occasions for toleration¿the existence of a power to prevent and of an adverse judgment¿can also make toleration sting. The paper then explores and rejects two familiar suggestions about how one should respond to this discomfort: with acceptance or recognition of the tolerated. It is proposed instead that toleration should be supplemented by understanding. The nature and importance of this attitude are assessed.

ISBN: 978-0-19-954289-5

This article seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a “separation of law and morals.” The paper contends that Hart's “separability thesis” should not be confused with the “social thesis,” with the “sources thesis,” or with a methodological thesis about jurisprudence. In contrast to all of these, Hart's separability thesis denies the existence of any necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among them is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasized what he called the “internal morality of law,” the “morality that makes law possible”. Hart’s most important message is that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism.

ISBN: 0028-7881

DOI: 10.1093/clp/cur014

A different-sex marriage need not be a marriage between heterosexuals, and a same-sex marriage need not be a marriage between homosexuals. This shows how little the law of marriage cares about the sexuality of parties to a marriage; it does not show that sex-restricted marriage laws do not discriminate on grounds of sexual orientation. They do. Neither does the law care much about sex, let alone possibly procreative sex, within marriage. The voidability of a different-sex marriage on grounds of non-consummation does not show otherwise. The formation of a valid marriage was always a matter of consent, not coitus. But what should happen to the doctrine of non-consummation in a sex-neutral marriage regime? It is an anachronism that should be abolished.

ISBN: 0070-1998

This paper addresses the perennial question of the relationship between law and justice. HLA Hart argued that ‘we have, in the bare notion of applying a general rule of law, the germ, at least, of justice.’ If true, this establishes a necessary connection between law and morality. That is no objection, for the so-called ‘separability thesis’ is anyway false. But the ‘germ-of-justice’ thesis is also false. Justice is a matter of the correct allocation of benefits and burdens among people. Contrary to what Hart and others think, there is not necessarily any injustice in failing to apply a valid legal rule, not even an ‘administrative’ injustice. It is readily conceded that ‘formal justice’ is not enough in law, that we also need ‘substantive justice’. This too is a mistake. Formal justice is not insufficient; it is incoherent--all justice is substantive. Might constant rule-application do justice by promoting impartiality? Not necessarily. It depends on the content of the rules and on the nature of the of the adjudicator’s prejudices. There is nonetheless a weak connection between law and justice. Every legal system has courts whose job it is to aim at justice: they must decide not only whether plaintiff deserves a remedy, or whether the prosecution is entitled to a conviction, but also whether these should be ordered in the face of a claim to the contrary. Courts have an allocative job to do. This does not show that they must achieve justice, or even a minimum of justice. Nor does it show that justice is the first virtue of legal institutions. The connection between law and justice is real, but modest. Justice is a necessary aim of a necessary legal institution.

This paper explores moral limits on state action: their sources, character, and stringency. It explains what is special about the liberal tradition: there must be a protected sphere of action, and governments must respect legality. It argues, against Patrick Devlin, that the possible absence of absolute moral reasons against intrusion in a sphere is consistent with justified absolute positive limits on government intrusion. It argues, against John Finnis, that the fact that some associations (e.g. churches or marriages or universities) have intrinsically valuable ‘common goods’ does not entitle them to immunity from government regulation. It concludes by suggesting why certain ‘natural law’ moralities have been considered unreasonably intrusive, for they neglect the significance of moral fallibility for limited government.

Two conceptions of the value of political freedom are popular. According to one, freedom serves autonomy, creating one’s own path through life. According to the other, freedom serves authenticity, keeping faith with an identity one did not choose. This paper bridges the gap between these views in several ways. It shows that autonomy embraces some of the unchosen aspects of life that authenticity stresses, and that authenticity is consistent with scope for choice within an unchosen identity. It is also shows that both views share a stake in a neglected value, self-knowledge. Partisans of authenticity cannot keep faith with their identity if they do not know what it truly is. Partisans of autonomy cannot choose a path in life without knowing what the options are for them, and these options can be affected instrumentally and constitutively by their identity, which they therefore have a stake in knowing. Of course, there can be more than one sound argument in favor of freedom. But contrary to what many suppose, autonomy and authenticity are complementary, not competing, in making that case. The differences between them are matters of nuance and degree.

Abstract: (Paper in Chinese): It is often supposed that most people believe they have a duty to obey the law. Examining empirical work by Tom Tyler and others, I show that the evidence offered for this proposition does not in fact support it. Existing surveys are all consistent with only much weaker popular attitudes to law. Suggestions are made about an appropriate test for this belief.

DOI: 10.1002/9781444320114.ch46

This article provides an overview of the key philosophical issues raised by the nature of coercion. It distinguishes two methods of coercion (physical force and ‘rational’ compulsion–paradigmatically by threats); and distinguishes coercion as a means of making someone act from coercion as a means affecting the normative position of the coerced party (‘duress’). It surveys analyses of what makes a proposal a threat, whether offers can be coercive, and why rational compulsion is per se morally problematic (if it is). It suggests that while all forms of rational compulsion have a common core, the conditions for duress depend on additional situation specific features (e.g. duress as a criminal law defence versus duress as a vitiating factor in agreements or marriage). It goes on to consider the sense(s) in which law can be regarded as coercive, and whether coercion is a necessary feature of law.

ISBN: 9781405170062

DOI: 10.1017/S1352325201071026

The main focus of the article is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law's efficacy; the other upon the law's normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken--not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law's normativity is inherently linked to coercion contains an important truth--not because coercion is necessary to account for normativity, but because the scope of law's claim to authority encompasses the right to authorize the use of coercion.

ISBN: 1469-8048

DOI: 10.1093/acprof:oso/9780198260578.001.0001

This paper discusses the puzzle of blackmail, i.e. the way in which the threat of an otherwise legally permissible action can in some cases constitute blackmail. It argues that the key to understanding blackmail is in terms of coercion and threats, and the effect such threats have on the validity of a victim’s consent. The nature of coercion and of coercive threats is considered in detail to support the thesis that threats are prima facie impermissible, though often justified all-things-considered. The puzzle of blackmail arises due to the fact that the law rarely has regard to an agent’s motives in acting, whereas this is the focus of the puzzling cases.

ISBN: 0198260571

This article discusses the nature of persuasive authorities in the common law, and argues that many of them are best understood in terms of their (being regarded) as having theoretical rather than practical authorities for the courts that cite them. The contrast between theoretical and practical authority is examined at length in order to support the view that the treatment of many persuasive authorities by courts is more consistent with this view. Finally, it is argued that if persuasive authorities are best understood as theoretical authorities, this raises difficulties for both positivistic and interpretivist theories of law.

ISBN: 1062-6239

DOI: 10.1111/j.1747-9991.2007

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice.

DOI: 10.1093/ojls/20.1.39

One of the central features associated with law is its coerciveness. A major source of our interest in law's coerciveness is that the use of coercion is thought to require moral justification - hence the liberal interest in the harm principle. This article seeks to contribute to the debate about the justifiable grounds for legal coercion by clarifying the ways in which law is coercive and demonstrating that coerciveness is a highly complex phenomenon. It argues that the legal authorization of physical force and sanctions, rather than the existence of enforcement institutions, is the appropriate focus for these enquiries. It considers the appropriate methodology for understanding the nature of coercion and goes on to argue that there are a group of nested conceptions of coercion which perform different roles in different contexts. The differences between these conceptions help to account for some of the disagreements over law's coerciveness. There is also an important contrast between laws which aim to coerce and those which merely have a coercive effect. All of these internal distinctions within coercion matter because they have considerable significance for the justification of coercive legal measures. Finally, it is argued that sanctions are neither necessary for the law to be coercive, nor always sufficient.

ISBN: 0143-6503

The central argument of this paper is that the rule of law is an ideal concerned with the conditions that are necessary for the law to succeed in governing a community. The influential views of Fuller and Raz which ground the ideal in the conditions necessary for the law to exist at all (Fuller) or for the law to be capable of guiding behaviour (Raz) are discussed and criticised. Four conditions are highlighted as part of the rule of law: (1) the law is effective; (2) the state is governed by and governs through law; (3) the individual laws can be jointly and severally obeyed; and finally (4) those other legal and social arrangements whose primary rationale is to serve conditions (1)–(3). Condition (4) accounts for the significance of such arrangements as an independent legal profession. Condition (4) also helps to explain both the attraction of regarding other political ideals such as democracy and human rights as aspects of the rule of law, since their existence helps promote the other conditions, and the reasons for excluding them from the rule of law itself, since their primary rationale is not to ensure that the law succeeds in governing the community. Finally, it is argued that the rationale for the rule of law lies in the value of a law governed community. The rule of law itself, however, is not always morally valuable: not because it is purely of instrumental value, but because it is an inherently mixed-value good.

ISBN: 978-0415878180

Translation

Translation

Translation

Translation

Interview by Beata Polanowska

Interview with Beata Polanowska

also in Bulgarian, Czech, Lithuanian, Latvian, Ukranian, Georgian and Belorussian translations.

Translation

Translation

Romanian translation by Maria Albert.

Chinese, Spanish and Portuguese translations forthcoming.

Translation

Translation

Translation

It's uncontroversial that politics shapes the law. The tough question is how exactly that works: which kinds of political action have a law-shaping effect and how they produce that effect. Consider the enactment of a statute. A. Which precise aspect of the action is relevant to the legal impact of the enactment (the change in legal rights and obligations that obtains without further such action)? B. Why - what gives some aspect of the action its legal relevance? Analogous questions also arise in connection with the explanation of some other phenomena, including making a promise, decision or request - actions or attitudes which are generally understood to result in some distinctive obligations or to have some other distinctive normative significance or impact, or at least to be capable of so doing. The relevant theoretical choices are posed particularly clearly in these domains, so I explore them in some detail in relation to promising.

ISBN: 0415878187

Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative.

ISBN: 1467-9337