Les Green is the Professor of the Philosophy of Law and Fellow of Balliol College. He also holds a part-time appointment as Professor of Law and Distinguished University Fellow at Queen's University in Canada. After beginning his teaching career as a fellow of Lincoln College, Oxford, he moved to Osgoode Hall Law School in Toronto. He has also been a visiting professor at many other law faculties, including Berkeley, NYU, Chicago and, for some years, at the University of Texas at Austin. Professor Green writes and teaches in the areas of jurisprudence, constitutional theory, and moral and political philosophy. He serves on the board of several journals and is co-editor of the annual Oxford Studies in Philosophy of Law and of the book series Oxford Legal Philosophy.
- This paper addresses the question of the relationship between law and coercive force. It defends, against Frederick Schauers claims in his book, The Force of Law, the following propositions: (a) the force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. (b) Even if coercion is not part of the concept of law, coercion is connected to law in a variety of ways. These are amply recognized in contemporary jurisprudence. (c) We cannot determine how important coercion is to the efficacy of law until we know what counts as coercive force. This question is not a matter for empirical generalization or bare stipulation. It requires an explanation of the concept of coercion.This paper argues that role of a judge consists of obligations to apply the law, obligations to improve the law, and obligations to protect the law. It defends this view against a competing suggestion by Michael Moore, who claims that, when acting judicially, judges are always obligated to apply the law, and the law alone. I argue that this depends on an incorrect view of the relationship between social roles and moral obligations, and an unacceptably capacious view of what the law is. I conclude by asking whether there nonetheless room to make a conceptual choice to see law as Moore thinks of it, or a reason to reform the concept of law along such lines. I reject both ideas. There are fewer conceptual choices in jurisprudence than some people think.Reprinting 'Pornographies', first published 8 Journal of Political Philosophy, (2000), 27-52.ISBN: 978-1-4094-3040-7Spanish translation by Erensto Riffo of 'The Concept of Law Revisted', first published in 94 Michigan Law Review 1687 (1996)DOI: 10.1007/s11572-013-9248-3Lawyers and philosophers have long debated whether law should enforce social morality. This paper explores whether law should improve social morality. It explains how this might be possible, and what sort of obstacles, factual and moral, there are to doing so. It concludes with an example: our law should attempt to improve our social morality of sexual conduct.ISBN: 1871-9791Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.ISBN: 9781849464567ISBN: 9780199679829Legal theorists have long debated whether law should enforce social morality. This paper explores a different problem: should law (try to) improve social morality? I argue that it should. First, against conceptual and empirical doubts, I argue that it is possible for law to improve morality. Second, against certain moral objections, I argue that it is often proper for law to try to improve it. Third, I offer an example: law should try to improve our social morality of sex, by trying to re-shape what we regard as valid consent to sexual activity. Along the way, the ideas of H. L. A. Hart and Patrick Devlin are examined, as are the empirical and policy claims of Paul Robinson and his collaborators. A revised version of the paper is to appear in Criminal Law and Philosophy.ISBN: 7562046468This paper tests the claim, made by H.L.A. Hart, that nothing is a legal system that fails to include certain obligations familiar in morality . This minimum content thesis was rejected by Hans Kelsen, among others. Harts arguments for the minimum content thesis are unsound; but the thesis is correct and a different defense of it is offered. Two general worries about the thesis are then addressed. Brian Leiter argues that, since law is an artefact, it has no essential properties at all and, a fortiori, no essential content. This is shown to involve several errors. Others argue that Harts view about the relation between law and morality is not a theoretical thesis at all: it is the practical thesis that we should try to improve law by improving the concept of law. It is shown that this is not a possible interpretation of any of Harts arguments: normative positivism has no Hartian foundations.DOI: 10.5235/TLT.3.2.150This 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 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.ISBN: 9781849460101This 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 ones 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.DOI: 10.1093/clp/cur014A 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: 0070-1998ISBN: 978-0-19-960533-3ISBN: 978-1-84113-894-7This 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 adjudicators 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.DOI: 10.1086/651425ISBN: 0014-1704Spanish translation of 'General Jurisprudence: a 25th Anniversary Essay'. Translated by Enrique Rodriguez Trujano & Pedro A. Villarreal Lizarraga.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.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. Harts 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: 0028-7881Why 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: 978-0-19-954289-5ISBN: 9780495095057DOI: 10.1017/S1352325208070079ISBN: 0030-6185ISBN: 0143-6503DOI: 10.1093/ojls/gqi030ISBN: 1464-3820ISBN: 631197656Whatever 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.ISBN: 0198298242ISBN: 0792370392A public debate on the government's consultation paper on same-sex marriage.ISBN: 978-0-19-827313-4ISBN: 978-045-933481-9ISBN: 463-470
Legal Philosophy, Jurisprudence, Constitutional Theory, Human Rights
Options taughtJurisprudence, Moral and Political Philosophy, Constitutional Theory, Jurisprudence and Political Theory