Methodology of Jurisprudence

Methodology of Jurisprudence

Descriptive Jurisprudence

Books and Papers

  • Veronica Rodriguez Blanco (2006). The Methodological Problem in Legal Theory: Normative and Descriptive Jurisprudence Revisited. Ratio Juris 19 (1):26-54.
  • Kenneth M. Ehrenberg (2016). The Functions of Law. Oxford University Press. What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (…)
  • Kenneth M. Ehrenberg (2011). The Anarchist Official: A Problem for Legal Positivism. Australian Journal of Legal Philosophy 36:89-112. I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist (…)
  • Kenneth M. Ehrenberg (2009). Defending the Possibility of a Neutral Functional Theory of Law. Oxford Journal of Legal Studies 29 (1):91.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of (…)
  • Joseph S. Fulda (1989). The Logic of the Whole Truth. Rutgers Computer and Technology Law Journal 15 (2):435-446. . Using erotetic logic, the paper defines the “the whole truth” in a manner consistent with U.S. Supreme Court precedent.
  • Jaap C. Hage, Ronald Leenes & Arno R. Lodder (1993). Hard Cases: A Procedural Approach. [REVIEW] Artificial Intelligence and Law 2 (2):113-167. Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one.
  • Andreas Hamfelt (1995). Formalizing Multiple Interpretation of Legal Knowledge. Artificial Intelligence and Law 3 (4):221-265. A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite well-established.
  • Ori J. Herstein (2013). A Legal Right to Do Legal Wrong. Oxford Journal of Legal Studies (1):gqt022. The literature, as are the intuitions of many, is sceptical as to the coherence of ‘legal rights to do legal wrong’. A right to do wrong is a right against interference with wrongdoing. A legal right to do legal wrong is, therefore, a right against legal enforcement of legal duty. It is, in other words, a right that shields the right holder’s legal wrongdoing. The sceptics notwithstanding, the category of ‘legal right to do legal wrong’ coheres with the concepts of (…)
  • Ori J. Herstein (2010). Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try” . Canadian Journal of Law and Jurisprudence 23 (2):403-428. Even though it offers a compelling account of the responsibility-component in the negligence standard-arguably the Holy Grail of negligence theory-Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal (…)
  • John Linarelli (2009). Analytical Jurisprudence and the Concept of Commercial Law. Penn State Law Review 114 (1):119-215. Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (…)

Normative Jurisprudence

Books and Papers

  • Dennis J. Baker (2008). The Harm Principle Vs. Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation. Australian Journal of Legal Philosophy 33 (66):66-99. In this paper, I consider Ripstein and Dan-Cohen’s critiques of the ‘harm principle’. Ripstein and Dan-Cohen have asserted that the harm principle should be jettisoned, because it allegedly fails to provide a rationale for criminalising certain harmless wrongs that ought to be criminalised. They argue that Kant’s second formulation of the categorical imperative and his concept of ‘external freedom’ are better equipped for ensuring that criminalisation decisions meet the requirements of fairness.
  • Göran Duus-Otterström (2013). Why Retributivists Should Endorse Leniency in Punishment. Law and Philosophy 32 (4):459-483. This paper develops a retributivist argument for leniency in punishment. It argues that even retributivists who defend desert-based punishment have a reason, internal to their view, to prefer more lenient over more severe punishments when there are doubts concerning how much punishment an offender deserves. This is because retributivists should take an asymmetrical view to underpunishment and overpunishment, and because the likelihood of overpunishment goes up with the severity of punishment. The radicalness of the ensuing leniency depends on the strength (…)
  • Kenneth M. Ehrenberg (2011). Law is Not (Best Considered) an Essentially Contested Concept. International Journal of Law in Context 7:209-232. I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (…)
  • David Ellerman (2014). On Property Theory. Journal of Economic Issues (3):601-624. A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function (…)
  • Colin Farrelly & Lawrence B. Solum (2007). An Introduction to Aretaic Theories of Law. In Colin Patrick Farrelly & Lawrence Solum (eds.), Virtue Jurisprudence. Palgrave Macmillan
  • Joseph S. Fulda (2007). Internet Stings Directed at Pedophiles: A Study in Philosophy and Law. Sexuality and Culture 11 (1):52-98. The article is intended to, in Sections I and II, flesh out and put within a metaphilosophical framework the theoretical argument first made in 2002 in “Do Internet Stings Directed at Pedophiles Capture Offenders or Create Offenders? And Allied Questions” (Sexuality & Culture 6(4): 73-100), with some modifications (See note 14). Where there are differences, I stand by this version as the final version of the argument. Section III addresses three experimental or empirical studies which might be thought to contradict (…)
  • Thomas F. Gordon (1993). The Pleadings Game. Artificial Intelligence and Law 2 (4):239-292. The Pleadings Game is a normative formalization and computational model of civil pleading, founded in Roberty Alexy”s discourse theory of legal argumentation. The consequences of arguments and counterarguments are modelled using Geffner and Pearl”s nonmonotonic logic,conditional entailment. Discourse in focussed using the concepts of issue and relevance. Conflicts between arguments can be resolved by arguing about the validity and priority of rules, at any level. The computational model is fully implemented and has been tested using examples from Article Nine of (…)
  • Jaap C. Hage, Ronald Leenes & Arno R. Lodder (1993). Hard Cases: A Procedural Approach. [REVIEW] Artificial Intelligence and Law 2 (2):113-167. Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one.
  • Leonard Kahn. Review Essay: Legal Theory, Law, and Normativity. [REVIEW] Journal of Moral Philosophy. Joseph Raz’s new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz’s topics here: theories of law, separability and necessity, and the normativity of law.
  • Linda J. Krieger (1987). Through A Glass Darkly: Paradigms of Equality and the Search for a Woman’s Jurisprudence. Hypatia 2 (1):45-61. In this article, Ms. Krieger explores the controversy concerning pregnancy disability leave presented by the case of California Federal Savings v. Guerra in light of Thomas Kuhn’s model of scientific paradigm change and Carol Gilligan’s theory regarding sex differences in moral reasoning. She argues that the controversy reflects a period of paradigm crisis in equality jurisprudence, brought about in part by the recent inclusion of greater numbers of women into the jurisprudential community.
  • Ken Levy (2017). Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism. Lewis and Clark Law Review 21 (1). My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion.
  • Matthew Lister (2011). The Legitimating Role of Consent in International Law. Chicago Journal of International Law 11 (2). According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law.
  • Re’em Segev (2010). Is the Criminal Law (So) Special? Comments on Douglas Husak’s Theory of Criminalization. Jerusalem Review of Legal Studies 1 (1):3-20. This is Re’em Segev’s contribution to the symposium on Douglas Husak’s book “Overcriminalization.”.
  • Robin West (2011). Normative Jurisprudence: An Introduction. Cambridge University Press. Machine generated contents note: 1. Revitalizing natural law; 2. Legal positivism, censorial jurisprudence, and legal reform; 3. Critical legal studies – the missing years; 4. Reconstructing normative jurisprudence.

Conceptual Analysis in Jurisprudence

Books and Papers

  • Lennart Ã…qvist (2007). An Interpretation of Probability in the Law of Evidence Based on Pro-Et-Contra Argumentation. Artificial Intelligence and Law 15 (4):391-410. The purpose of this paper is to improve on the logical and measure-theoretic foundations for the notion of probability in the law of evidence, which were given in my contributions Ã…qvist [ (1990) Logical analysis of epistemic modality: an explication of the Bolding-Ekelöf degrees of evidential strength. In: Klami HT (ed) Rätt och Sanning (Law and Truth. A symposium on legal proof-theory in Uppsala May 1989). Iustus Förlag, Uppsala, pp 43-54; (1992) Towards a logical theory of legal evidence: semantic analysis (…)
  • Emanuela Ceva & Andrea Fracasso (2010). Seeking Mutual Understanding. A Discourse Theoretical Analysis of the WTO Dispute Settlement System. World Trade Review 9 (3):457-485. The WTO Dispute Settlement System (DSS) has been the object of many studies in politics, law, and economics focusing on institutional design problems. This paper contributes to such studies by accounting for the argumentative nature and sophisticated features of the DSS through a philosophical analysis of the procedures through which it is articulated. Jürgen Habermas’s discourse theory is used as a hermeneutic device to disentangle the types of ‘orientations’ (compromise, consensus, and mutual understanding) pertaining to DSS procedures.
  • Kenneth M. Ehrenberg (2016). The Functions of Law. Oxford University Press. What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so (…)
  • Kenneth M. Ehrenberg (2009). Defending the Possibility of a Neutral Functional Theory of Law. Oxford Journal of Legal Studies 29 (1):91. I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law.
  • Leonard Kahn (forthcoming). Review Essay: Legal Theory, Law, and Normativity. [REVIEW] Journal of Moral Philosophy. Joseph Raz’s new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz’s topics here: theories of law, separability and necessity, and the normativity of law.
  • John Oberdiek & Dennis Patterson (2007). Moral Evaluation and Conceptual Analysis in Jurisprudential Methodology. In Michael D. A. Freeman & Ross Harrison (eds.), Law and Philosophy. Oxford University Press

Naturalism in Jurisprudence

Books and Papers

  • Marcin Matczak, A Theory That Beats the Theory? Lineages, the Growth of Signs, and Dynamic Legal Interpretation. Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life.

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