Hybrid journal (It can contain Open Access articles) ISSN (Print) 0065-8995 - ISSN (Online) 2049-6494 Published by Oxford University Press[419 journals]
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Authors:Miller P. Pages: 175 - 238 Abstract: Abstract:Private law scholarship is experiencing a reawakening in the United States with the rise of the New Private Law. New Private Lawyers have emphasized our common commitment to the scholarly interest and practical importance held by legal concepts; a belief that private law ought to be analyzed (in part) from an internal point of view; and a conviction that functionalist and conceptual analyses of private law doctrines, procedures and institutions are, or can be, complementary. We are also joined in criticism of aspects of American legal realism and in lament over some of its continuing legacies in private law. However, New Private Law scholars have yet to articulate a scholarly methodology that defines and differentiates our work. I argue that the New Private Law is rooted in a shared—if implicit—new formalist methodology and provide the first programmatic explanation of it. The Article does several things. It provides a clear statement of methodological tenets of the new formalism. It relates these to wider developments in general jurisprudence, with particular attention to scholarship on law and practical reason. It explains the sense in which the new formalism is novel, especially relative to older varieties of legal formalism. It distances the new formalism from foolish and implausible claims prominent in pejorative renderings of legal formalism. It shows how the new formalism is reflected in New Private Law scholarship. And it explains how a clear grasp of new formalist methodology enables reconciliation of the otherwise baffling eclecticism in the New Private Law while promising new and fruitful avenues for its future development. PubDate: Tue, 26 Oct 2021 00:00:00 GMT DOI: 10.1093/ajj/auab013 Issue No:Vol. 66, No. 2 (2021)
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Authors:Howes T. Pages: 239 - 267 Abstract: Abstract:For the sake of defending the political-ethical legitimacy of religious exemptions, this article analyzes what contemporary natural law theorists call the good of religion—harmony with the transcendent source of existence and meaning. This good serves as a principle in practical judgments, not as a premise in a deductive argument, but as an end of action. Practical familiarity and explicit understanding of this good can differ among individuals, and variations of such familiarity and understanding lead to differing practical judgments concerning what constitute reasonable choices in its pursuit. This in turn affects judgments of fairness concerning burdens on that same pursuit. It is optimal for judgments about religious exemptions to presuppose a more paradigmatic understanding of this good so that one can better assess what is really at stake in the minds of religious believers when their religious liberty is burdened. In making a case for a more paradigmatic understanding of religion, this article draws attention to existential data from which practical insight into the good of religion arises. PubDate: Sat, 20 Nov 2021 00:00:00 GMT DOI: 10.1093/ajj/auab012 Issue No:Vol. 66, No. 2 (2021)
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Authors:Schauer F. Pages: 269 - 278 Abstract: Abstract:The differentiation of law is a pervasive and crucially important topic. Although H.L.A. Hart and others have stressed how law resembles games and other institutions, Hans Kelsen’s focus on law as a “specific” social technique represents a needed focus on what makes law different, or special. Christoph Kletzer admirably follows Kelsen in focusing and what makes law unique, and Kletzer’s claim that law is unique in ordering the use of force is also a valuable contribution to the project of recognizing how force, sanctions, and coercion remain important features of law. Kletzer may go too far, however, in believing that an account of law must show how law is sharply demarcated from other social institutions. A more fruitful and more descriptively and conceptually plausible project would give up the search for rigid demarcation and explore those features of law that may not be unique to law but are concentrated in law. And thus we might think of law not as something that exists or not, but that different institutions might have differing degrees of what we can call “lawness.” PubDate: Mon, 29 Nov 2021 00:00:00 GMT DOI: 10.1093/ajj/auab021 Issue No:Vol. 66, No. 2 (2021)
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Authors:Albrecht K. Pages: 279 - 290 Abstract: Abstract:This paper reflects on Christoph Kletzer’s absolute positivism and puts a focus on a view of the basic norm that grounds the validity of law in the law itself. I will try to explain the significance of this idea against the backdrop of Hans Kelsen’s transformation of the basic norm from a “hypothesis” to a “fiction.” I shall argue that the goal of an ultimate foundation of the objective validity of a legal order can only be accomplished by a fictional basic norm. In my eyes, contrary to what Kelsen claimed in his later work, such a norm cannot amount to a genuine epistemological fiction (echte Fiktion) in the sense of Hans Vaihinger’s “The Philosophy of ‘As If,’” but has to be regarded, rather, as a practical legal fiction. PubDate: Mon, 06 Dec 2021 00:00:00 GMT DOI: 10.1093/ajj/auab015 Issue No:Vol. 66, No. 2 (2021)
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Authors:Green M. Pages: 291 - 307 Abstract: Abstract:This essay criticizes three positions concerning permissions taken by Christoph Kletzer in his book The Idea of a Pure Theory of Law. First, Kletzer argues that Hans Kelsen should have understood X has having a legal obligation to φ if and only if someone else is permitted (rather than empowered) to exercise force upon X for not-φ-ing. Kelsen in fact had good reasons to speak of empowerment rather than only of permission. The second topic concerns the type of strong permission that Joseph Raz calls exclusionary. Kletzer argues that Raz’s definition of an exclusionary permission generates an infinite regress. In what is arguably the most detailed account of the structure of exclusionary permissions in print, this essay defends Raz’s definition. The third and primary topic concerns Kletzer’s understanding of a permission to φ as a deontic void: the absence of duties to φ and of duties to not-φ. Many share Kletzer’s view. Joseph Raz understands weak permissions as absences. And the usual reading of Wesley Newcomb Hohfeld’s related idea of a privilege to φ is that it is the absence of a duty to not-φ. But the absence theory is mistaken. When a normative system does not exist, there is no permission to φ, even though there are no duties to φ or to not-φ either. The same is true when φ-ing is outside the system’s scope and when φ-ing (although within the system’s scope) falls in a gap in the system. Conversely, if a normative system is inconsistent, one can have a permission to φ and a duty to not-φ (or to φ). It follows that a permission, even a weak permission, is a deontic something, not a nothing, and that weak permissions can have an effect on our practical reasoning. The same points apply to Hohfeldian privileges. PubDate: Sat, 04 Dec 2021 00:00:00 GMT DOI: 10.1093/ajj/auab020 Issue No:Vol. 66, No. 2 (2021)
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Authors:Vinx L. Pages: 309 - 320 Abstract: Abstract:Kelsen argued that any legal system claims a monopoly of the legitimate use of coercive force. Where there is law, Kelsen held, uses of force are prohibited unless they are specifically authorized by the law. Christoph Kletzer's reconstruction of the Pure Theory of Law offers a more austere picture of the relation between law and coercive force. According to Kletzer, the law regulates the use of force simply by permitting it. To make good on this claim, Kletzer must show that it is possible to give a satisfactory description of the workings of legal order in terms of permissions of the use of force alone. This paper argues that an account of legal order as austere as this cannot be given. The permissive operations of the law Kletzer takes to be fundamental presuppose a prior prohibition of unlawful uses of coercion. PubDate: Mon, 29 Nov 2021 00:00:00 GMT DOI: 10.1093/ajj/auab019 Issue No:Vol. 66, No. 2 (2021)
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Authors:Somek A. Pages: 321 - 337 Abstract: Abstract:Kletzer’s book is the most important and most original contribution to the project of the Pure Theory of law that we have seen in decades. The reformulation that is offered by Kletzer raises the question, however, whether it is also consistent with Kelsen’s original project. This may be doubted, for it is to be feared that Kletzer’s theory involves a variety of the naturalistic fallacy and celebrates de facto as natural law the law of the jungle. As an attempt to continue the legacy of the Pure Theory, Kletzer’s contribution fails. The root of the failure lies in the conflation of alethic and deontic modalities. PubDate: Tue, 30 Nov 2021 00:00:00 GMT DOI: 10.1093/ajj/auab022 Issue No:Vol. 66, No. 2 (2021)
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Authors:Simmonds N. Pages: 339 - 353 Abstract: AbstractKletzer believes that, by focusing upon permission, we can derive the law’s obligatory power from the idea that the world is normatively inert. In a normatively inert world, everything is permitted. Consequently, if the law operates by permitting the use of force, it requires no deep normative underpinning: it could even invoke moral nihilism as its basis. Although ingenious, this argument faces two formidable problems. Firstly, in a normatively inert world, permissions can have causal effects but no normative effects. And secondly, the normatively inert world cannot be assumed as an uncontentious given or derived from the shortfall between what is and what ought to be, as Kletzer supposes. It requires a contestable metaphysics. Although accepting the unity of practical reason, Kletzer rejects the traditional natural law position on the grounds that law and morality are of dissimilar form, so that law cannot be grounded in morality. At the same time, he fails to offer any explanation of that difference in form. Once we have a satisfactory explanation of this difference, we see that it is precisely the difference in form between law and morality that enables us to understand law’s basis in morality. Individual moral engagement and reflection can flourish only within communities governed by law. PubDate: Fri, 19 Nov 2021 00:00:00 GMT DOI: 10.1093/ajj/auab018 Issue No:Vol. 66, No. 2 (2021)
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Authors:Köpcke M. Pages: 355 - 371 Abstract: Abstract:Kletzer’s recent book The Idea of a Pure Theory illustrates the incoherence of a legal theory’s methodological commitment to “purity,” and hence to independence from moral and empirical concerns. Unlike other self-styled “positivist” accounts that pay mere lip service to this methodological agenda, Kletzer helpfully spells it out and follows it through, to the point of expunging from his account anything bearing the resemblance of an argument from first principles. He associates moral with theological reasoning, and theological reasoning in turn with legal reasoning by appeal to validating criteria. But his account pays a high price for purity. The price is the account’s internal contradiction and inconsistency with a legal theory’s criteria of success. Reflection on Kletzer’s enterprise suggests that we have reason to reject a “pure” method in doing legal theory. PubDate: Thu, 25 Nov 2021 00:00:00 GMT DOI: 10.1093/ajj/auab017 Issue No:Vol. 66, No. 2 (2021)
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Authors:Kletzer C. Pages: 373 - 393 Abstract: Abstract:The Idea of a Pure Theory of Law presents a new jurisprudential theory based on Hans Kelsen's Pure Theory of Law. This article responds to some criticisms of that book, in particular those that question the role that permissions can play in our thinking about he law. The article begins with a brief restatement of the basic ideas behind my theory of permission and then tackles the most salient clusters of criticism. It ends with a discussion of some more general points that have been made about my book. PubDate: Thu, 30 Dec 2021 00:00:00 GMT DOI: 10.1093/ajj/auab023 Issue No:Vol. 66, No. 2 (2021)
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Authors:Oman N. Pages: 395 - 408 Abstract: Nicholas J. McBride, The Humanity of Private Law, Part I: Explanation Oxford: Hart Publishing, 2019 Nicholas J. McBride, The Humanity of Private Law, Part II: Evaluation Oxford: Hart Publishing, 2020 PubDate: Sat, 04 Dec 2021 00:00:00 GMT DOI: 10.1093/ajj/auab016 Issue No:Vol. 66, No. 2 (2021)
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Authors:DeGirolami M. Pages: 409 - 413 Abstract: The End of the Affair Reviewing Joel Harrison, Post-Liberal Religious Liberty: Forming Communities of Charity, Cambridge: Cambridge University Press, 2020 PubDate: Mon, 13 Dec 2021 00:00:00 GMT DOI: 10.1093/ajj/auab014 Issue No:Vol. 66, No. 2 (2021)
Hybrid journal (It can contain Open Access articles)
[419 journals]
