October 23, 2008
"Naturalizing Jurisprudence: Three Approaches"
Here, for those who might be interested.
July 28, 2008
For my Chinese readers...
...a translation of the "Interview about Legal Philosophy," courtesy of Jingzhe Yang, a graduate student in the Department of Jurisprudence at Northwestern University of Politics and Law, on whose web site it appears.
April 04, 2008
"In Praise of Realism (and Against 'Nonsense' Jurisprudence)"
A draft of what was my Dunbar Lecture in Law and Philosophy at the University of Mississippi last week is here.
October 23, 2007
"Why Evolutionary Biology is (so far) Irrelevant to Law"
A revised, penultimate version of this paper I wrote with the philosopher of biology Michael Weisberg is now on-line for those who might be interested. It will appear some time in 2008.
September 15, 2007
"Legal Philosphy: 5 Questions"
September 11, 2007
"Why Tolerate Religion?"
The penultimate version of this paper is now on-line; it will appear in Constitutional Commentary early next year. This version can be cited and quoted.
August 03, 2007
"Explaining Theoretical Disagreement"
I have posted a draft of the main paper I've been working on this summer here. Here is the abstract:
Shapiro (2007) has recently argued that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls “theoretical disagreement” about law, that is, disagreement about “the grounds of law” or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the “face value” of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or “head count” dispute, i.e., a dispute about what judges are doing, and how many of them are doing it (since it is the actual practice of officials and their attitudes towards that practice that fixes the criteria of legal validity according to the positivist).
Positivism, however, has two other explanations for theoretical disagreement, which “explain away” rather than preserve the “face value” disagreement. According to positivists, either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law, that is, they are trying to say, as Dworkin puts it, “what it should be” not “what the law is”; or they are simply in error, that is, they honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. The “Disingenuity” and “Error Theory” accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases.
I'll be presenting this at the ANU later this month, and hope to prepare a revised version thereafter.