Andrei Marmor

Positive law and objective values

1. Constitutive Conventions 2. Conventions and The Normativity of Law 3. Exclusive Legal Positivism 4. The Separation Thesis and The Limits of Interpretation 5. Authority and Authorship 6. Three Concepts of Objectivity 7. Four Questions about The Objectivity of Law 8. The Objectivity of Values Bibliography

Social Conventions: From Language to Law

Acknowledgments vii Preface ix Chapter One: A First Look at the Nature of Conventions 1 Chapter Two: Constitutive Conventions 31 Chapter Three: Deep Conventions 58 Chapter Four: Conventions of Language: Semantics 79 Chapter Five: Conventions of Language: Pragmatics 106 Chapter Six: The Morality of Conventions 131 Chapter Seven: The Conventional Foundations of Law 155 Bibliography 177 Index 183

Law in the Age of Pluralism

Introduction - Acknowledgements I. The Rule of Law and the Rule of the Many - Ch.1 The Rule of Law and Its Limits - Ch. 2 Should We Value Legislative Integrity? - Ch. 3 Authority, Equality and Democracy - Ch. 4 Are Constitutions Legitimate? II.Legal Theory, Law, and Morality - Ch. 5 Legal Positivism: Still Descriptive and Morally Neutral - Ch. 6 How Law is Like Chess - Ch. 7 Should Like Cases Be Treated Alike? - Ch. 8 The Immorality of Textualism III.Rights and Equality - Ch. 9 On The Limits of Rights - Ch. 10 Do We Have A Right To Common Goods? - Ch. 11 On The Right to Private Property and Entitlement to Ones Income - Ch. 12 The Intrinsic Value of Economic Equality Bibliography - Index

Philosophical foundations of language in the law

1. Introduction 2. The Value of Vagueness 3. What Vagueness and Inconsistency Tell Us about Interpretation 4. Vagueness and the Guidance of Action 5. Can the Law Imply More Than It Says? On Some Pragmatic Aspects of Strategic Speech 6. Textualism and the Discovery of Rights 7. Textualism, Intentionalism, and the Law of Contracts 8. Modeling Legal Rules 9. Trying to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes 10. Legislation As Communication? Legal Interpretation and the Study of Linguistic Communication

The Dilemma of Authority

The normal way to establish that a person has authority over another requires a rule-governed institutional setting. To have authority is to have power, in the juridical sense of the term, and power can only be conferred by norms constituting it. Power conferring norms are essentially institutional, and the obligation to comply with a legitimate authority’s decree is, first and foremost, institutional in nature. Thus, the main argument presented in this essay is that an explanation of practical authorities is a two-stage affair: the special, practical import of an authority can only be explained on the background of an institutional setting which constitutes the authority’s power and the corresponding obligation to comply. However, this obligation is not an all things considered obligation, it is conditioned on reasons to participate in the relevant institution or practice. A complete account of the reasons to regard authoritative decisions as binding must also rely on the reasons for having the institution or practice in question and the kind of authoritative structure that it has. This argument is presented here on the background of a critique of two alternative accounts, Joseph Raz’s service conception of authority and Stephen Darwall’s second personal standpoint account.

The Separation Thesis and the Limits of Interpretation

There are many versions of legal positivism; perhaps as many as there are legal positivists around. All the versions of legal positivism, however, subscribe to the so-called Separation Thesis. This thesis basically maintains that detenriining what the law is, does not necessarily, or conceptually, depend on moral or other evaluative considerations about what it ought to be in the relevant circumstances. Legal positivists differ, however, and quite substantially, over the appropriate interpretation of this thesis. The so-called ‘strong’, or ‘exclusive’ version of legal positivism maintains that moral considerations never determine the legal validity of norms. ‘Soft’ positivists, on the other hand, do maintain that there is a close relation between legal validity and morality, but they hold that this relation is, at best, a contingent matter; it does not derive from the nature of law or legal reasoning as such. Soft-positivists claim that moral considerations determine legal validity only in certain cases, namely, in those cases which follow from the rules of recognition that happen to prevail in a given legal system.

Do We Have a Right to Common Goods

The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individuals right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.

Varieties of Vagueness in the Law

The main purpose of this essay is to articulate the different types of vagueness, and related linguistic indeterminacies, that we find in statutory language and to explain their different rationales. I argue that the various normative considerations involved in employing vague terms in legislation depend on the kind of vagueness in question. I show that while some cases of vagueness in law are concerned with fairly standard problems of borderline cases, other are not. I also argue that semantic vagueness can be distinguished from conversational vagueness, which we also find in law, and that vagueness in law should be clearly distinguished from cases of ambiguity and polysemy.

Right-Based Justification of Punishment

The deontological justification of punishment is generally associated with the notion of “retributive justice”. This notion, however, underlies only one of two distinct approaches by which one may attempt to justify punishment within deontological morality. According to this, the classical approach, punishment is to be regarded as an end in itself, intrinsically valuable, from the moral point of view. According to other deontological views, however, punishment has only instrumental value – not, as in consequentialism, in the maximization of some general social good, but in the maintenance and equal distribution of basic individual rights . Borrowing Dworkins terminology, this view can be called a “right-based” conception of punishment.

As constituições são legítimas? Doi: 10.5020/2317-2150.2011.v16n1p83

O artigo critica o constitucionalismo sobre o ponto de vista de sua legitimidade moral. Para tanto, o Autor, na primeira parte, inicia expondo as principais caracteristicas do constitucionalismo, que chama de “pacote constitucional”: supremacia normativa da constituicao, revisao judicial, longevidade, rigidez, conteudo bidimensional, generalidade/abstracao. Na segunda parte, na qual e iniciada a analise critica, o Autor argumenta que o proposito e o fundamento logico do constitucionalismo, a saber, proteger alguns principios do Estado e certos direitos morais e politicos do processo de decisao democratico ordinario, sao frageis no que diz com sua legitimidade moral, por duas razoes basicas: o problema da vinculacao de geracoes futuras e o problema do pluralismo. Na terceira parte, o Autor explica, para depois criticar, quatro dos principais argumentos dos adeptos do constitucionalismo, a saber, os argumentos da oportunidade, da estabilidade, da pratica e dos limites inerentes a regra da maioria, os quais estariam destinados a suplantar os dois problemas de legitimidade moral ao constitucionalismo apresentados pelo Autor na segunda parte. Seguem, em resumo, duas conclusoes, uma no campo da interpretacao constitucional e outra no da estrutura constitucional.