Kenneth Einar Himma - Böcker

There is something quite puzzling about the global conversation on jurisprudence. On the one hand, jurisprudence is supposed to deal with abstract questions concerning the nature, structure, and distinctive features of the law. These questions are not tightly associated with, or dependent on, the particular legal practices in one jurisdiction or another. But, on the other hand, it seems that jurisprudents are tacitly affected by their background institutional context: there is an evident divide between theorizing about the law in the civil law world and in the common law world. Jurisprudence in the Mirror: The Common Law World Meets the Civil Law World systematically presents the major achievements of contemporary civil law jurisprudence to the common law world and bridges the gap in analytic jurisprudence as it is currently practiced in the two traditions. The volume seeks to bring different voices to the table and overcome the cultural and linguistic divides that have created barriers in philosophical exchanges. The book's structure is dialogical: it includes twelve essays written by prominent and influential jurisprudents from the civil law world, each followed by a response by a jurisprudent from the common law world. This approach highlights what the two worlds share, where they part ways, and why. The varied contributions reveal how their respective legal traditions shape fundamental legal concepts and jurisprudential debates and will be invaluable to readers from both the civil and common law worlds.

The Rule of Recognition and the U.S. Constitution is a volume of original essays that discuss the applicability of Hart's rule of recognition model of a legal system to U.S. constitutional law. The contributors are leading scholars in analytical jurisprudence and constitutional theory, including Matthew Adler, Larry Alexander, Mitchell Berman, Michael Dorf, Kent Greenawalt, Richard Fallon, Michael Green, Kenneth Einar Himma, Stephen Perry, Frederick Schauer, Scott Shapiro, Jeremy Waldron, and Wil Waluchow. The volume makes a contribution both in jurisprudence, using the U.S. as a "test case" that highlights the strengths and limitations of the rule of recognition model; and in constitutional theory, by showing how the model can illuminate topics such as the role of the Supreme Court, the constitutional status of precedent, the legitimacy of unwritten sources of constitutional law, the choice of methods for interpreting the text of the Constitution, and popular constitutionalism.

Morality and the Nature of Law explores the conceptual relationship between morality and the criteria that determine what counts as law in a given societythe criteria of legal validity. Is it necessary condition for a legal system to include moral criteria of legal validity? Is it even possible for a legal system to have moral criteria of legal validity? The book considers the views of natural law theorists ranging from Blackstone to Dworkin and rejects them, arguing that it is not conceptually necessary that the criteria of legal validity include moral norms. Further, it rejects the exclusive positivist view, arguing instead that it is conceptually possible for the criteria of validity to include moral norms. In the process of considering such questions, this book considers Raz's views concerning the nature of authority and Shapiro's views about the guidance function of law, which have been thought to repudiate the conceptual possibility of moral criteria of legal validity. The book, then, articulates a thought experiment that shows that it is possible for a legal system to have such criteria and concludes with a chapter that argues that any legal system, like that of the United States, which affords final authority over the content of the law to judges who are fallible with respect to the requirements of morality is a legal system with purely source-based criteria of validity.

This volume assembles leading scholars to examine how their respective theoretical positions relate to the artifactual nature of law. It offers a complete analysis of what is ontologically entailed by the claim that law - including legal systems, legal norms, and legal institutions - is an artifact, and what consequences, if any, this claim has for philosophical accounts of law. Examining the artifactual nature of law draws attention to the role that intention, function, and action play in the ontological structure of law, and how these attributes interact with rules. It puts the role of author and authorship at the center of its analysis of legal ontology, and widens the scope that functional analysis can legitimately have in legal theory, emphasizing how the content of law depends on how it is used. Furthermore, the appeal to artifacts brings to the fore questions about the significance of concepts for the existence of law, and makes available new tools for legal interpretation. The notion of artifactuality offers a starting point from which to approach the basic dilemma of whether it is meaningful to search for essential, necessary, and sufficient features of law, a question that in current legal theory is put when deciding what kind of enterprise legal theory is from a methodological point of view, namely whether it is descriptive or prescriptive. This volume unearths insights and observations of value to all those looking to deepen their understanding of how the law is understood and experienced.

The Coercion Thesis has been a subject of longstanding debate, but legal positivist scholarship over the last several decades has concluded that coercion is not necessary for law. Coercion and the Nature of Law is concerned with reviving the Coercion Thesis, presenting a strong case for the inherently coercive nature of legal regulation, and arguing that anything properly characterized as a legal system must back legal norms prohibiting breaches of the peace with the threat of a coercive sanction. Himma presents the argument that people are self-interested beings who must compete in a world of scarcity for everything they need to survive and thrive. The need to compete for resources naturally leads to conflict that can breach the peace, and threatens the ability to live together in a community and reap the social benefits of cooperation. Law only functions as a system if it can maintain the peace enough for community to continue, and thus systems of law cannot succeed in doing anything that we want systems of law to do unless they back laws prohibiting violent assaults on persons or property with the threat of punishment; without sanctions, we would descend into something resembling a condition of war-of-all-against-all. We adopt coercive systems of regulation precisely to avoid having to live under such conditions.The book is divided into three parts: (1) a prima facie logical-empirical case for the Coercion Thesis, (2) a study of the "society of angels" and international law counterexamples, and why they do not refute the thesis, and (3) an analysis of how law guides behaviour and the implications of the Coercion Thesis on reasons for action.Going against the current conventional wisdom in legal philosophy, Himma makes a systematic defence of the Coercion Thesis arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.

This volume collects many of the key essays exploring the possible relationships between the concepts of law and morality, a central concern of contemporary philosophizing about law. It is organized around five conceptual issues: classical natural law theory; legal positivism's separability thesis; Ronald Dworkin's constructive interpretivism; inclusive legal positivism's assertion that there can be legal systems with moral criteria of legality; and the relevance of morality and moral theorizing in theorizing about the concept of law and associated legal concepts. Each of the essays makes an important contribution toward addressing these issues.

The Nature of Authority provides a comprehensive theory of the nature of authoritative guidance. It argues that the following claims exhaust the constitutive properties of authoritative tellings: authoritative tellings (1) tell subjects what to do; (2) give rise to reasons to comply; (3) are issued by personal beings and govern the behavior of personal beings; (4) are issued by rationally competent beings and govern the behavior of rationally competent beings; (5) are issued under a claim of right that counts as plausible in virtue of being grounded in a system to which subjects acquiesce as governing their behavior; (6) are issued by beings with the power to impose their will on subjects with respect to what they do; (7) create obligations to comply; and (8) are backed by a threat of detriment that is reasonably contrived to deter enough noncompliance to enable the system to minimally achieve its ends.

The Nature of Authority provides a comprehensive theory of the nature of authoritative guidance. It argues that the following claims exhaust the constitutive properties of authoritative tellings: authoritative tellings (1) tell subjects what to do; (2) give rise to reasons to comply; (3) are issued by personal beings and govern the behavior of personal beings; (4) are issued by rationally competent beings and govern the behavior of rationally competent beings; (5) are issued under a claim of right that counts as plausible in virtue of being grounded in a system to which subjects acquiesce as governing their behavior; (6) are issued by beings with the power to impose their will on subjects with respect to what they do; (7) create obligations to comply; and (8) are backed by a threat of detriment that is reasonably contrived to deter enough noncompliance to enable the system to minimally achieve its ends.

This book provides a new and wide-ranging study of law’s normativity, examining conceptual, descriptive and empirical dimensions of this perennial philosophical issue. It also contains essays concerned with, among other issues, the relationship between semantic and legal normativity; methodological concerns pertaining to understanding normativity; normativity and legal interpretation; and normativity as it pertains to transnational law. The contributors come not only from the usual Anglo-American and Western European community of legal theorists, but also from Latin American and Eastern European communities, representing a diversity of perspectives and points of view – including essays from both analytic and continental methodologies. With this range of topics, the book will appeal to scholars in transnational law, legal sociology, normative legal philosophy concerned with problems of state legitimacy and practical rationality, as well as those working in general jurisprudence. It comprises a highly important contribution to the study of law’s normativity.

This book provides a new and wide-ranging study of law’s normativity, examining conceptual, descriptive and empirical dimensions of this perennial philosophical issue. It also contains essays concerned with, among other issues, the relationship between semantic and legal normativity; methodological concerns pertaining to understanding normativity; normativity and legal interpretation; and normativity as it pertains to transnational law. The contributors come not only from the usual Anglo-American and Western European community of legal theorists, but also from Latin American and Eastern European communities, representing a diversity of perspectives and points of view – including essays from both analytic and continental methodologies. With this range of topics, the book will appeal to scholars in transnational law, legal sociology, normative legal philosophy concerned with problems of state legitimacy and practical rationality, as well as those working in general jurisprudence. It comprises a highly important contribution to the study of law’s normativity.