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Abstract:
The issue of whether the state is morally justified in affording content-creators a legal right to exclude others from the content of their creations is a sharply contested issue in information ethics. Once taken for granted as morally legitimate, intellectual property rights have come under fire in the last thirty years as evolving digital information technologies have severed the link between expression of ideas and such traditional material-based media as books and magazines. These advances in digital technology have called attention to unique features of intellectual content that seemingly problematize intellectual property protection; any piece of intellectual content, for example, can be simultaneously appropriated by everyone in the world without thereby diminishing the supply of that content available to others. This essay provides an overview and assessment of the issues, arguments, and counterarguments on intellectual property.

information, intellectual property, legitimacy

Abstract:
Joseph Raz has argued that the very possibility of moral criteria of legality is precluded by a proper understanding of our concept of authority - a concept that figures prominently in our understanding of law and the concepts that figure into legal practices. Given the way we understand the notion of authority, he argues, there cannot be a legal system with moral criteria of legality. The existence of moral criteria of legality is, on his view, as problematic as the existence of a married bachelor - and, ultimately, for the same reason: both are logically precluded by the content of the relevant concepts.

In this essay, I wish to explain and evaluate Raz's argument for this idea, an argument that depends on claims about our concepts of both law and authority. His argument in grounded, most immediately, in two claims. First, he argues it is conceptually true that law claims morally legitimate authority. Second, he argues the content of an authoritative directive must be identifiable without reflecting on the dependent reasons that justify the directive. I argue both claims are mistaken.

authority, conceptual analysis, legal positivism, law and morality, inclusive legal positivism

Abstract:
Though the idea that first-order valid law creates legal obligations binding citizens is central to legal practice, positivists have had little to say about it since Hart rejected Austin's view that legal obligation could be explained entirely in terms of coercive commands, leaving positivism without a comprehensive theory of legal obligation.

Although Hart did not have a fully worked-out theory of first-order legal obligation, he seemed pretty clearly to believe that the requisite social pressure constituting a primary legal norm as legally obligatory - at least in modern municipal legal systems like ours - is the availability of institutional coercive enforcement mechanisms. In distinguishing moral and legal obligation, Hart argues that "the typical form of legal pressure may very well be said to consist in such threats [of physical punishment or unpleasant consequences]" (CL 179, 180).

In this essay, I attempt to build on this important suggestion and apply Hart's analysis of social obligation to describe the content of the concept of first-order legal obligation as it functions in ordinary talk and legal practice. Since, as a conceptual matter, our obligations make certain behaviors non-optional or mandatory, the key problem in understanding the concept of legal obligation as it applies to citizens is to explain the sense in which the relevant behaviors are made non-optional. I will argue that the non-optionality of first-order legal obligation is best understood in modern municipal legal systems by reference to institutional coercive enforcement mechanisms.

positivism, Austin, Hart, obligation, validity, coercion, coercive enforcement, social obligation

Abstract:
While the Separability Thesis implies that there are no necessary moral criteria of legal validity, it leaves open the question of whether there are possible moral criteria of validity. Inclusive legal positivists (also known as soft positivists and incorporationists) believe there can be such criteria; that is, they believe there are conceptually possible legal systems in which the criteria for legal validity include (or incorporate) moral principles. Exclusive legal positivists (also known as hard positivists) deny there can be moral criteria of validity. Exclusive positivists claim the existence and content of law can always be determined by reference to social sources. This essay is an overview of the distinguishing commitments of positivism and inclusive positivism; it describes and evaluates some of the most influential criticisms of inclusive positivism.

inclusive positivism, raz, hart, authority, practical difference, positivism

Abstract:
Quine's argument that there is no non-circular way to explicate the notion of analyticity, together with his observation that any claim can be revised in the face of recalcitrant experience, is thought by many philosophers to have conclusively refuted traditional views about conceptual analysis and metaphysics. In this essay, I consider what I take to be the major arguments against the possibility of doing conceptual analysis as traditionally conceived. In particular, I consider (1) the denial of the distinction between analytic and synthetic statements; (2) recent research on the fallibility of ordinary intuitions; (3) the idea that all claims are revisable in the face of recalcitrant experience;(4) the claim that even putatively conceptual claim are contingent in character; and (5) the claim that traditional conceptual analysis (henceforth TCA) presupposes a discredited epistemological foundationalism. I argue that these arguments are all vulnerable to serious objections; the matter is not at all as straightforward as some philosophers seem to believe. Although the counterarguments presented below are probably not conclusive, they show that much more work is needed to succeed in showing that philosophy needs to be "naturalized."

naturalism, conceptual analysis, legal philosophy, analyticity, Quine, Leiter

Abstract:
It is commonly thought that the existence of a moral obligation to obey law qua law is inconsistent with legal positivism: "[a] positivist answer to the question of legality makes the claim that law is, in even the weakest sense, morally obligatory untrue." It is also commonly thought that classical naturalism implies the existence of a moral obligation to obey law qua law: "a theory that takes the law's being morally binding to be a condition of its legality provides a plausible theory of obligation [but] at the expense of a theory of legality" (Coleman, 66).

In this essay, I will argue that both of these commonly held views are false. In particular, I will argue that the question of whether there is a moral obligation to obey law is logically independent of the question of whether there are necessary moral constraints on the content of law. Otherwise put, neither the separability thesis nor its negation logically implies either the claim that there is a moral obligation to obey law qua law in every possible legal system or the claim that it is not the case that there is a moral obligation to obey law qua law in every possible legal system.

positivism, Hart, Aquinas, Blackstone, natural law theory, obligation to obey law

Abstract:
The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who believe intellectual property rights are illegitimately protected by the state. In this essay, I will attempt to (1) determine what ISBF means (which will require determining what the concept-term "information" means as used in ISBF); (2) evaluate what kind of support there is for ISBF; (3) determine whether ISBF conforms to ordinary views about the propriety of certain restrictions on the free flow of information; and (4) determine whether ISBF provides good reason for thinking that legal protection of intellectual property rights is illegitimate. I will argue that the most charitable interpretation of ISBF lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.

information, intellectual property, rights, legitimate

Abstract:
I consider the issue of whether and when electronic civil disobedience (or hacktivism) is morally impermissible. First, I argue that, in an otherwise legitimate state, civil disobedience is morally justified or excusable only in narrowly defined circumstances. Second, I attempt to identify a reliable framework for evaluating civil disobedience that weighs the social and moral values against the social and moral disvalues. Third, I apply this framework to acts of hacktivism. I argue that hacktivism is impermissible insofar as such acts result in significant harms to innocent third-parties or insofar the persons responsible for such acts conceal their identities to avoid the potential legal consequences.

civil disobedience, hacking, digital activism, activism, hacktivism

Abstract:
Joseph Raz's famous theory of authority is grounded in three claims about the nature and justification of authority. According to the Preemption Thesis, authoritative directives purport to replace the subject's judgments about what she should do. According to the Dependence Thesis, authoritative directives should be based on reasons that actually apply to the subjects of the directive. According to the Normal Justification Thesis (NJT), authority is justified to the extent that subjects are more likely to comply with right reason by following the authority's directives than by following their own judgments about what right reason requires. In this essay, I consider a number of ways in which NJT might be construed as a justification for authority. First, I evaluate NJT construed as a principle that would provide a practical justification for an individual to accept or recognize a particular person or persons as a preemptive authority. Second, I evaluate NJT construed as a principle that describes the conditions under which a state or legal system is morally legitimate. I argue that NJT is true under none of these interpretations.

legitimacy, legitimate, authority, justification of authority, normal justification thesis, Raz

Abstract:
In this essay, I consider the issue of what resources the state is morally obligated to provide to ensure citizen access to the civil justice system. I begin by describing the general problem of morally legitimate authority and how it bears on what I will call the problem of access as it pertains to the civil justice system. I then identify three different general approaches to the general problem of morally legitimate authority and argue that none of these approaches warrants thinking that the state is morally obligated to provide each citizen with perfectly equal access to the civil justice system. I conclude by arguing that the three approaches to legitimacy converge on two principles: one that defines an affirmative obligation (i.e., the Reasonable Access Principle) to provide to each citizen what is minimally necessary to develop and defend a plausible legal position and one that defines a negative obligation (i.e., the Equality Principle) to refrain from restricting access to the civil justice system for reasons that deny the equality of every moral person.

Legitimacy, authority, rights, access, civil justice

Abstract:
Victims of hacker attacks are increasingly adopting an "active defense" against Internet-based attacks. Instead of adopting purely defensive measures, many victims are opting for active countermeasures that are no less aggressive than the attacks themselves. For example, victims of denial of service (DoS) attacks sometimes respond by redirecting incoming packets back to their sources instead of by dropping the packets at the router; such a measure is intended to induce the cessation of the attack by overloading the network from which it is staged. This essay examines some of the technical, ethical, and legal issues associated with active intrusion response.

active defense, counterhacking, hacking back, self-defense, hacking

Abstract:
In this essay, I consider the relationship between the rights to privacy and security and argue that, in a sense to be made somewhat more precise below, that threats to the right to security outweighs comparable threats to privacy. My argument begins with an assessment of ordinary case judgments and an explanation of the important moral distinction between intrinsic value (i.e., value as an end) and instrumental value (i.e., value as a means), arguing that each approach assigns more moral value, other things being equal, to security interests than to privacy interests. I then consider the issue from with a number of mainstream approaches to normative theories of state legitimacy, including social contract theories (new and old), utilitarian theories, Scanlon's contractualism, and various communitarian theories assign security rights a higher place on the moral hierarchy than privacy rights. I then conclude that, under ordinary intuitions and each of these theories, security interests trump (or outweigh) privacy interests when the two come into "direct" conflict - although I make no attempt to give an algorithm or theory for answering the important question of when these interests come into direct conflict and how to weigh them when, say, minor interests in security conflict with major interests in privacy.

Privacy, security, rights, morality, utilitarianism, social contract theories, contractualism, communtarianism, legitimacy

Abstract:
Joseph Raz's famous authority-based critique against inclusive positivism includes the claim that "it is part of the very nature of law that it claims legitimate authority." Although this now seems to be predominant view among legal positivists, inclusive and exclusive, I argue that it is problematic. First, I identify a number of difficulties in interpreting the claim that a legal system, which is a system and hence an abstract object, can make "claims" to begin with. Second, I argue that Raz's arguments for this conclusion, most plausibly construed, fail. Third, I give a counterexample to the claim by describing something that has all the distinguishing features of a legal system except for those that Raz believes makes a claim to authority (e.g., the use of such terms as "rights" and "obligations"). I argue that this system is properly characterized as a legal system -- despite the absence of these features.

Raz, authority, exclusive positivism, inclusive positivism, legitimate authority, law, legal positivism

Abstract:
It is sometimes argued that legal protection of intellectual property is illegitimate because intellectual objects are not subject to conditions of scarcity and can simultaneously be consumed by everyone. I argue that this line of argument is problematic. By itself, the claim that intellectual objects are unlimited and can be consumed by everyone simultaneously does not imply that we have some sort of moral claim to intellectual objects that is inconsistent with the legal protection of intellectual property. While this claim is certainly a reason against thinking that protection of intellectual property is morally justified, it falls well short of conclusive because it does not contain any information about what respective interests the creator and third parties have in intellectual objects. I conclude that a proper analysis of the legitimacy of intellectual property rights must take into account the morally protected interests that content-creators have both in the expenditure of their limited resources (e.g., time, energy, and intellectual labor) and in the value that the expenditures of such efforts brings into the world.

intellectual property, rights, interests, legitimacy, intellectual objects

Abstract:
Quine's argument that there is no non-circular way to explicate the notion of analyticity, together with his observation that any claim can be revised in the face of recalcitrant experience, is thought by many philosophers to have conclusively refuted traditional views about conceptual analysis and metaphysics. In this essay, I consider what I take to be the major arguments against the possibility of doing conceptual analysis as traditionally conceived. In particular, I consider (1) the denial of the distinction between analytic and synthetic statements; (2) recent research on the fallibility of ordinary intuitions; (3) the idea that all claims are revisable in the face of recalcitrant experience; and (4) the claim that even putatively conceptual claim are contingent in character. I argue that these arguments are all vulnerable to serious objections; the matter is not at all as straightforward as some philosophers seem to believe. Although the counterarguments presented below are probably not conclusive, they show that much more work is needed to succeed in showing that philosophy needs to be naturalized.

naturalism, conceptual analysis, legal philosophy, analyticity, Quine, Leiter

Abstract:
In H.L.A. Hart's now famous Postscript to The Concept of Law, he embraced the Incorporation Thesis, according to which it is possible for a legal system to have a rule of recognition that incorporates moral criteria of validity. Scott Shapiro argues that the Incorporation Thesis is inconsistent with Hart's functionalist conception of law. On Hart's view, the essential function of law is to guide behavior. This implies, according to Shapiro, that every legal norm must be capable of guiding behavior. But Shapiro argues it is logically impossible for a judge to be guided simultaneously by an inclusive rule of recognition and by the rules validated under the rule. Thus, he concludes that Hart must give up either the Incorporation Thesis or his functionalist conception of law as providing guides to behavior.

In this essay, I will evaluate Shapiro's influential critique of the Incorporation Thesis. I will argue that Shapiro's argument succeeds, at most, against certain accounts of what it means to be guided by a rule. There are other plausible accounts of guidance that not only allow for inclusive rules of recognition, but also satisfy Shapiro's own standard for accounts of motivational guidance. Further, I will challenge two critical theoretical claims on which his argument rests, namely (1) that Hart's view implies a judge must be motivationally guided by the first-order legal norms she applies in deciding a case; and (2) that a commitment to legal functionalism implies the Practical Difference Thesis.

Hart, Practical Difference Thesis, incorporationism, inclusive positivism, Scott Shapiro

Abstract:
I attempt to show that the law should, as a matter of political morality, provide limited protection of intellectual property interests. To this end, I argue that the issue of whether the law ought to coercively restrict liberty depends on an assessment of all the relevant competing interests. Further, I argue that the interests of content-creators in controlling the disposition of the content they create outweighs the interests of other persons in using that content in most, but not all, cases. I conclude that, in these cases, morality protects the interests of content-creators, but not the interests of other persons and hence would justify limited legal protection of the former interests.

intellectual property, legitimacy, political morality, interests, intellectual content, content-creators

Abstract:
In this essay, I consider arguments both for and against intellectual property rights that are premised on some conception of a morally significant information commons. In particular, I consider the argument for a morally protected information commons that is grounded in Locke's famous proviso limiting original acquisition of material property to situations that leave enough of the resource to others and Hardin's famous argument that holding material property in common leads to overuse and depletion - a tragedy of the commons. I argue that neither argument is directly applicable to information objects.

Intellectual Property Rights, Locke, Commons, Information Commons, Digital Commons, Tragedy of the Commons

Abstract:
Although moral, social, and legal obligations are conceptually distinct, many theorists believe they are instances of the same general type. As Joseph Raz puts it: Normative terms like 'a right,' 'a duty,' 'ought' are used in the same sense in legal, moral, and other normative statements. If this correct, then legal and moral obligations have different properties, but both satisfy the application-conditions for the concept-term obligation in the following sense: Satisfaction of the application-conditions for obligation will be necessary (though not sufficient) for something to count as either a legal obligation or a moral obligation. The set of application-conditions for obligation will be, on this view, a subset of the set of application conditions for both moral obligation and legal obligation. In this essay I attempt to develop what I take to be the central elements of the general concept of obligation.

Philosophy, Obligation, Law, Morality, Duty, Conceptual Analysis

Abstract:
Legal theorists specializing in constitutional theory have tended to regard positivism and other conceptual theories as irrelevant; the idea is that a theory of the concept of law cannot tell us anything that helps to solve difficult normative and descriptive substantive issues of constitutional theory. While there is something to this complaint, there is at least one substantive non-normative issue worth pursuing - and I attempt to pursue it here. In particular, I attempt to determine how the Constitution and rule of recognition are related by examining the practices of officials. This will not solve any interesting issues of constitutional theory, but it entails that judicial supremacy extends further than is commonly assumed, making the morally normative issues associated with this practice in a democratic system of governance even more difficult.

positivism, constitution, constitutionalism, constitutional interpretation, judicial supremacy, rule of recognition

Abstract:
Inclusive positivists accept the Incorporation Thesis, according to which there are conceptually possible legal systems in which the legality criteria "incorporate" substantive moral norms in the following sense: satisfaction of those norms is a necessary or sufficient condition for a proposition to count as law. The Incorporation Thesis seems to permit a more natural explanation of the role moral principles play in adjudicating hard issues of law. Whereas the exclusive positivist must explain those principles as constraints on judicial discretion, the inclusive positivist can explain those principles as defining necessary or sufficient conditions for law.

In this essay, I argue that this framework does not help us to understand legal practice in any developed legal system we are likely to encounter. In particular, I argue that a moral norm N cannot function as a necessary or sufficient condition of legality if the rule of recognition grants a court general legal authority to bind officials with either of two conflicting decisions on whether a proposition is law in virtue of satisfying N. But since, as a practical matter, it would be very difficult for beings like us to produce a viable legal system that doesn't afford some court such authority, genuinely inclusive legal systems are very unlikely in worlds that resemble ours in salient respects.

Inclusive Positivism, incorporation of morality, criteria of legality, rule of recognition, Hart, Raz

Abstract:
In a two fascinating papers, Jules Coleman has been considering an idea, first articulated and defended by Scott Shapiro in his forthcoming book Legality, that, law calls for a moral semantics. In a recent paper, Coleman argues it is a conceptual truth that legal content stating behavioral requirements, whether construed as propositions or imperatives, can "truthfully be redescribed as expressing a moral directive or authorization" (Coleman 2007, 592). For example, the directive "mail fraud is illegal" expresses, if not that mail fraud is morally wrong, then that we have a content-independent moral reason for not committing mail fraud. In this essay, I will attempt to explicate and evaluate Coleman's arguments, as well as attempt to determine what I will call the "Redescription Thesis" amounts to.

positivism, Coleman, Shapiro, redescription thesis, moral semantics

Abstract:
The amount of online content to which people in reasonably affluent nations have access is increasing at an astonishing - even alarming - rate. Recent studies show, for example, there were 550 billion pages on the World Wide Web in 2001 and that, by January 2005, 11.5 billion pages of the much larger number of existing pages have been publicly indexed. In 1990, there was an online world, but no websites in it.

Traditionally, it has been assumed - at least within mainstream Western philosophy - that information is good in virtue of being information; that is to say, merely having an informative nature is a sufficient condition for its being properly characterized as good. Librarians were the first to see something wrong with the idea that information is essentially good, but they are by no means the last. Psychologists, economists, policy-makers, sociologists, philosophers and ordinary people are all becoming concerned that we have too much information. In particular, they are concerned that we are overloaded with information - something that cannot happen if information is, by its very nature, a primary, intrinsic, or instrumental good.

But what is information overload? This essay attempts to provide a philosophical explication of the concept of information overload and is therefore what philosophers call conceptual analysis - a task that, along with normative ethical analysis, is distinctive to Anglo-American style analytic philosophy. The methodology is the traditional one associated with conceptual analysis: to identify the deeper metaphysical implications and presuppositions associated with our ordinary use of the relevant terms, which include the terms information and overload.

information, overload, speech, value of infomation, infomation overload, information and quality of life

Abstract:
In his remarkable paper "How Facts Make Law," Mark Greenbergargues that descriptive facts about certain social practices are not the only necessary determinants of legal content. In addition, he argues that "value facts" - which he is committed to construing as moral facts - are another necessary determinant of legal content. Unlike Dworkin who defends his view on the basis of a morally informed conception of what role law ought to play in a society, Greenberg defends his view "on the basis of very general philosophical considerations unlike those on which Dworkin himself relies" (HFML 160) that are metaphysical in character and do not involve normative or meta-ethical claims. Indeed, Greenberg takes his argument to show, more generally, that descriptive facts about social practices cannot, by themselves, determine the content any social rule; value facts play a necessary role in determining the content of any set of social rules.

In this response, I will focus primarily on Greenberg's conclusion and the general structure of his deep and nuanced argument, and not on the details of the argument. In particular, I will argue that, construed as doing the work Greenberg believes it does in refuting positivism, his conclusion that legal content is not possible without value facts has certain implications about the nature of morality that no purely metaphysical considerations about the relationship between social practices and the content of social norms can plausibly have. In particular, Greenberg's conclusion, together with the obvious (because extremely weak) truth that law is possible, seems to imply moral objectivism - a highly contested view in general ethical theorizing. Indeed, if Greenberg is correct, his view together with the obvious possibility of other kinds of social rules (like rules of language), seems to imply the truth of moral objectivism. I take this to be a reduction of his view, as it seems clear that no theory relying on general metaphysical claims about social practices can bear such weight.

positivism, Dworkin, Hart, determinants of legal content, criteria of legality, law and morality, Greenberg

Abstract:
A spate of papers have recently appeared raising the issue of the possibility of not only artificial agency, but also artificial moral agency that raises all sorts of substantive questions of moral responsibility. Suppose, for example, that we are epistemically justified in believing that an ICT engineer has designed and produced an ICT that is capable of acting and satisfies the criteria for moral agency. If this ICT turns out to do something bad that no one anticipated, who is morally responsible: the designer, the ICT or some combination of both?

What I wish to attempt to do is to work out some conceptual issues regarding the concepts of agency, natural agency, artificial agency, and moral agency, as well as articulate the criteria for moral agency as a first step towards beginning a consideration of these important questions of professional responsibility. Much of what I take myself to be doing enjoys a consensus in the literature - so much so that many crucial claims on which I rely are taken for granted in such widely-used and respected professional resources as the Stanford Encyclopedia of Philosophy, Routledge Encyclopedia of Philosophy, and the Internet Encyclopedia of Philosophy. I attempt to flesh out some of the implications of some of these well-settled theories with respect to the prerequisites that an ICT must satisfy in order to count as a moral agent accountable for its behavior.

I will begin with analyses of the more basic concepts, like that of agency, and work up to an analyses of the more complex concepts, like that of moral agency and rational free agency, subsequently considering the criteria something must satisfy to be accountable for its behavior; all of this will largely be uncontroversial in the literature. I will then argue that the each of the various elements of the necessary conditions for moral agency presupposes consciousness, i.e., the capacity for inner subjective experience like that of pain or, as Nagel puts it, the possession of an internal something-of-which-it is-is-to-be-like. I ultimately conclude that the issue of whether artificial moral agency is possible depends on the issue of whether it is possible for ICTs to be conscious.

action, agency, artificial agency, moral agency, moral accountability, consciousness

Abstract:
The occurrence of constitutional disagreement among officials is commonly thought to be inconsistent with the legal positivist thesis that the criteria of validity are wholly conventional in character. If it is the shared beliefs and practices of officials that determine the content of the validity criteria, then it would seem that officials must agree on such content. But, on this line of reasoning, there is considerable disagreement among U.S. officials about the criteria of validity: judges and other officials, after all, frequently disagree on core meanings of the substantive norms of the Constitution.

It is important to note, however, that such reasoning critically depends on the claim that the substantive norms of the Constitution directly define validity criteria. In this essay, I reject this altogether natural conception of the relationship between the Constitution and the criteria of validity in the U.S. In essence, I argue that the claim that the substantive norms of the Constitution directly define validity criteria cannot be reconciled with the empirical fact that conventional legal practice affords the Supreme Court final authority to decide whether a duly enacted norm is legally valid. I then provide an alternative formulation of the relevant validity criterion that explicitly recognizes this uncontroversial aspect of U.S. legal practice and show how to reconcile constitutional disagreement with this formulation.

positivism, Hart, criteria of validity, Constitution, rule of recognition, judicial disagreement

Abstract:
Moore attempts to show that privacy, conceived as "control over access to oneself and to information about oneself" is "necessary" for human well-being. Moore grounds his argument in an analysis of the need for physical separation, which Moore suggests is universal among animal species. Moore notes, "One basic finding of animal studies is that virtually all animals seek periods of individual seclusion or small-group intimacy." Citing several studies involving rats and other animals, Moore points out that a lack of such separate space frequently results in threats to survival. Moore goes on to suggest, quite plausibly, that since we evolved from such animals, we share some need for separation. I argue such reasoning involves a conceptual mistake, as a need for physical space and separation is not obviously tantamount to a need for privacy of any kind - much less a need for information privacy.

privacy, information, security, rights, information ethics

Abstract:
The theoretical core of positivism is thought to consist of three theses about the nature of law. The separability thesis denies the existence of necessary moral constraints on the content of law. The pedigree thesis articulates necessary and sufficient conditions for legal validity having to do with how or by whom law is promulgated. The discretion thesis asserts that judges decide hard cases by making new law. While it is often assumed that these theses form a coherent theoretical whole, such an assumption is false. Construed as a claim about all possible legal systems, the discretion thesis is inconsistent with the pedigree thesis. Construed as a claim that is true in some, but not all, possible legal systems, the discretion thesis makes a fundamentally different kind of claim than those made by the pedigree and separability theses and hence should not be thought of as part of positivism's theory of law.

Abstract:
No abstract available.

Abstract:
Inclusive and exclusive positivists disagree on whether criteria of validity can incorporate moral norms. Inclusive positivists believe there are conceptually possible legal systems in which the criteria of validity include moral norms (the 'Incorporation Thesis'). Exclusive positivists, following Joseph Raz, reject the Incorporation Thesis on the ground that subjects of a putative legal system incorporating moral criteria of validity could not identify the law without evaluating the very reasons the law is supposed to replace. Since law cannot be authoritative unless it is identifiable without recourse to those dependent reasons, the Incorporation Thesis is inconsistent with the nature of authority. Most defences of the Incorporation Thesis attempt to refute Raz's theory of authority. In contrast, Jules Coleman argues that inclusive positivism is compatible with Raz's theory. In this essay, I examine Coleman's defence of the Compatibility Thesis.

Abstract:
Exclusive positivists, following Joseph Raz, reject inclusive positivism on the ground it is inconsistent with the nature of legal authority. On Raz's view, law cannot be authoritative unless identifiable without recourse to the dependent reasons that justify the law. But since subjects of a putative legal system incorporating moral criteria of validity cannot identify the law without evaluating the very reasons the law is supposed to replace, an inclusive rule of recognition cannot be authoritative. In response, Jules Coleman argues (1) that the Razian conception of authority requires no more than that it not be impossible for someone to identify the law without recourse to moral reasons justifying it and (2) that inclusive positivism satisfies this weaker condition. In this essay, I argue that (1) is false. In particular, I argue that Raz's service conception of authority implies that a directive cannot be authoritative unless couched in language that enables a subject to identify what it requires without any further evaluation of the dependent reasons.

Abstract:
The fundaments of Dworkin's third theory of law include two claims: (1) judges in legal systems like that of the US lack lawmaking discretion in hard cases; and (2) the content of the law in such legal systems is determined by moral norms that show existing legal practice in its morally best light. In this essay, I argue that these claims are in tension with each other and with the uncontroversial fact, acknowledged by Dworkin, that the highest court with jurisdiction over an issue of law has final authority to determine the content of the law with respect to that issue. In addition, I suggest that Dworkin's third theory is more fruitfully construed partly as an analysis of a normatively thick concept of law and partly as a descriptively functional explanation of the content of the law.

Abstract:
H.L.A. Hart famously proposed that law in every full-blown legal system derives from a “rule of recognition”: an ultimate criterion of legal validity accepted as such by officials. This claim is central to modern analytical jurisprudence. Subsequent work has either elaborated and refined Hart’s claim, or challenged it (as with Dworkin’s scholarship).

U.S. constitutional theorists have generally paid little attention to Hart’s view or the debates about it. And analytical jurisprudents have discussed the view without much reference to the actual features of legal practice in the United States.

This book, with chapters by leading constitutional theorists and jurisprudents, seeks to systematically examine the applicability of the “rule of recognition” model to the U.S. legal system – seeking both to illuminate questions of constitutional theory, and to use the U.S. system as a “test bed” for Hart’s claims. A multitude of topics are addressed, including: the legal status of extratextual sources of fundamental U.S. law; debates about interpretive methods, e.g., originalism versus nonoriginalism; judicial supremacy; the legitimacy of constitutional precedent; “popular constitutionalism”; whether the rule-of-recognition model should allow for a multiplicity of such rules; whether the rule of recognition is duty-imposing or power-conferring; the connection between fundamental law and social practice; and the role of shared plans in constituting a legal system. Contributors include: Matthew Adler, Larry Alexander, Mitchell Berman, Michael Dorf, Richard Fallon, Michael Steven Green, Kent Greenawalt, Kenneth Einar Himma, Stephen Perry, Frederick Schauer, Scott Shapiro, Jeremy Waldron, and Wil Waluchow.

rule of recognition, U.S. Constitution, H.L.A. Hart, Ronald Dworkin, positivism, social practice, judicial supremacy, textualism, originalism, precedent, popular constitutionalism

Abstract:
In this essay, I examine Joseph Raz's influential view that
Hart's Incorporation Thesis is inconsistent with the Authority Thesis. According to the Authority Thesis, it is part of the very concept of law that law claims morally legitimate authority; thus, any institutional normative system that fails to make such a claim is conceptually disqualified from being a legal system. I argue that this widely accepted claim is false. In particular, I argue that the characteristic use of deontic language in law does not entail a claim of legitimate authority that can be imputed to either individual officials or to the legal system as a whole.

Abstract:
Theoretical disagreement about the grounds of law, on Dworkin's view, is inconsistent with legal positivism because it explains the application conditions for the concept of law in terms of shared criteria for creating, changing, and adjudicating law. Since, according to Dworkin, lawyers in legal systems like the U.S. frequently disagree about the grounds of law, it follows that the application conditions for the concept of law cannot be exhausted by shared criteria. The semantic sting, then, implies there is more to the concept of law than can be explained by shared criteria contained in a rule of recognition. In this essay, I argue that Dworkin's formulation of the semantic sting in Law's Empire conflates two distinct claims: (1) the application conditions for the concept of law are exhausted by shared criteria; and (2) the grounds of law are exhausted by shared criteria. Further, I show that, contra Dworkin, cases like Riggs v. Palmer do not involve pivotal disagreement about the grounds of law.

Abstract:
Inclusive positivists subscribe to the Incorporation Thesis, according to which it is conceptually possible for a legal system to have a rule of recognition that incorporates moral norms. Joseph Raz counters that inclusive positivism is inconsistent with the nature of authority. This influential critique depends on a number of controversial theses about the nature of authority and legal systems. Most conspicuous among these are the Authority Thesis, which asserts that every conceptually possible legal system claims authority, and the Preemption Thesis, which asserts that authority figures (or ought to figure) into practical deliberations by replacing the subject's evaluation of the balance of reasons.

In this essay, I challenge an underlying assumption of the Razian critique also depends on a thesis that has gone largely unchallenged in the literature: according to the Instantiation Thesis, law cannot sincerely claim authority unless it is capable of instantiating authority. I argue that this seemingly plausible thesis is false, in part, because there is widespread disagreement among legal officials about what authority is.

Raz, authority, exclusive positivism, inclusive positivism, legitimate authority, law, legal positivism

Abstract:
This is a comprehensive review of Jules L. Coleman's The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Though Coleman is principally concerned to defend a methodology for conceptual analysis, he addresses a number of substantive issues along the way, including issues in the theories of law, adjudication, and torts, and his analysis represents the state of the art on each of these issues. Althogh The Practice of Principle breaks significant ground on nearly every issue it touches, I argue that there are problems with many of his substantive and mehtodological claims about conceptual jurisprudence and legal theory-- both with respect to his views about the theory of law and with respect to his views about the theory of torts.

Jules Coleman, tort theory, positivism, conceptual analysis, methodology, pragmatism