Brian H Bix

Raz on Necessity

The article uses Joseph Razs work as the starting point for a general discussion of the role of necessity and essence in jurisprudence. Analytical legal theorists commonly assert (or assume) that they are offering conceptual truths, claims regarding attributes necessarily true of all legal systems. Is it tenable to speak about necessary truths with a humanly created institution like law? Upon closer investigation, the use of necessary truths in writers like Raz and Jules Coleman clearly differs from the way such terms are used in classical metaphysics, and even in contemporary discussions of natural kind terms. Nonetheless, theorists making conceptual statements regarding law are making significant and ambitious claims that need to be defended - for example, against naturalists like Brian Leiter, who doubt the value of conceptual analysis, and normative theorists like Stephen Perry, who argue that assertions about the nature of law require value-laden moral and political choices between tenable alternatives.

Conceptual Questions and Jurisprudence

Conceptual analysis is an integral part of legal theory, but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective rather than another. By showing that divergent purposes are often present in competing analyses of the same concept, I also hope to indicate why some “debates” in the jurisprudential literature are best understood as theorists talking past one another.

Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy

A number of important legal theorists have recently argued for metaphysically realist approaches to legal determinacy grounded in particular semantic theories or theories of reference, in particular, views of meaning and reference based on the works of Putnam and Kripke. The basic position of these theorists is that questions of legal interpretation and legal determinacy should be approached through semantic meaning. However, the role of authority (in the form of lawmaker choice) in law in general, and democratic systems in particular, require that these realist solutions to the problem of legal determinacy be rejected, or at least significantly revised.

Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate

Legal positivism, like breakfast cereal, seems to come in a wide variety of brands, with modest variations in the ingredients. Each brand offers slightly different promises as to the benefits of choosing it over its competitors. The question for the tired morning consumer is whether anything important is at stake in the choice,’ or whether he or she should just choose whatever is handy or on sale that month. In this article, I will consider some of the debates within legal positivism, and some of the disputes between legal positivism and its critics, as a means of exploring some more general issues regarding the process of theorizing about law. In discussing the internal debates within legal positivism, I will focus on the debate between inclusive and exclusive forms of positivism, though there are numerous other, if lesser known, intra-group squabbles to be found, which are also of interest and warrant attention.

Rules and Normativity in Law

Two of the persistent questions in the philosophy of law concern the relationship between law and rules and the relationship between law and morality. Both topics are most sharply raised through the topic of “legal normativity.” Many contemporary legal theorists purport to “explain legal normativity,” but often fail to articulate what it means to say that law is normative or in what way that property requires explanation. As a way of resolving some problems of legal normativity, this article offers a reading of Hans Kelsen’s legal theory as a limited claim about the logic of normative claims: that when one reads the actions of legal officials normatively, this assumes or presupposes the validity of the foundational norm of that legal system, a Kelsenian “Basic Norm.” This article also looks at a different aspect of legal normativity through a focus on the work of H. L. A. Hart. Legal norms frequently prescribe what one ought to do or ought not to do. However, the rush of legal theorists to describe law as thus making moral claims seems ungrounded and unnecessary.

Ideals, Practices, and Concepts in Legal Theory

This paper offers an overview of the different approaches to theorizing about the nature of law, focusing on the justification and value of theories grounded in ideals or objectives. Part I discusses how many mainstream theorists have transformed theorizing about the practice of law into theories about the concept of law; Part II offers a quick overview of a number of theorists who offer theories fairly characterized as based on an ideal or teleology of law; and Part III revisits some basic methodological issues relating to the evaluation of the differing approaches to legal theory, before concluding.

Theories of contract law

Theorizing about contract law has a long history – its origins coincide with the origins of thinking of about contract law as a separate area of law.1 However, there has been a particular flourishing of work (at least in English) on contract theory in recent decades, prompted in large part by the publication of Charles Fried’s influential book, Contract as Promise2 (about which, more below). Despite the long history and recent increase in theorizing about contract law, the nature and purpose of such theorizing remains under-discussed and many basic questions remain unanswered. In this chapter, section I will discuss general considerations relating to theorizing about contract law, section II offers an overview of some major types of theories, and section III raises some of the skeptical challenges to theorizing in this area.

Kelsen in the United States: Still Misunderstood

In American legal philosophy—even if one narrows one’s focus to careful consideration of the sub-category, American analytical legal philosophy—the ideas of Hans Kelsen are generally ignored. And on the rare occasions when Kelsen’s ideas are not ignored, they are almost always discussed quickly, and, more often than not, erroneously. Part I of this paper gives examples of Kelsen’s works being overlooked, sample misreadings by prominent theorists, and considers some standard explanations for this indifference and ignorance. Part II turns to some more subtle (and controversial) questions of correct and incorrect readings, focusing on Kelsen’s Basic Norm.

Radbruch’s Formula, Conceptual Analysis, and the Rule of Law

In most legal systems, courts frequently apply (and see themselves as bound to apply) norms that are not valid within their legal system, and the courts also on occasion do not apply (and see themselves as bound not to apply) otherwise applicable norms that are valid norms within their legal system. Judges’ roles include the resolution of disputes where the ruling norms come from outside the home legal system (or, from any legal system), and the courts may also have responsibilities to develop the law and to avoid unjust or absurd applications of otherwise valid norms. This paper argues that it would thus be more charitable to read the Radbruch Formula as a prescription for judicial decision-making rather than as a descriptive, conceptual or analytical claim about the nature of law. The suggested change will not affect the place of the Radbruch Formula within debates about the rule of law or the role of courts. The issue remains the same: whether it is consistent with the rule of law not to apply norms otherwise legally valid because they are extremely unjust. Radbruch argued that this is consistent with the general understanding of law and the expectations for law. Other commentators have been concerned that Radbruch’s approach undermines the rule of law by giving significant and unpredictable discretion to judges to refuse to apply otherwise valid norms.

Law and Economics and Explanation in Contract Law

INTRODUCTION Law-and-economics scholars have offered theories that purport to compete with other theories of law, and with other theories of particular doctrinal areas of law. This chapter will explore what it means to have a theory of a particular area of law, using contract law as an example, and will then consider the way in which law-and-economics theories succeed or fail in explaining contract law. Section I offers a brief overview of the problems and possibilities inherent in theories about a doctrinal area of law (like contract law). Section II addresses the question of whether theories are or should be general and universal rather than particular. Section III introduces the law-and-economics approach, and section IV discusses the role of historical or causal explanation, both in general theorizing about doctrinal areas and in the law-and-economics approach. Section V looks at some less ambitious variations of doctrinal theories from law-and-economics writers, and section VI outlines some critiques and responses to the law-and-economics approach. THEORIES, EXPLANATION, AND JUSTIFICATION What does it mean to have “a theory of law” or “a theory of contract law”? Such jurisprudential theories sit uneasily between theories of the humanities and theories of the social sciences. And theories of doctrinal areas do not obviously fit into the more familiar sorts of theories one finds from the physical sciences, declaring the certain causes and effects of objects in their interaction.