Law and Practical Reason – serie

Some say that private law ought to correct wrongs or to protect rights. Others say that private law ought to maximise social welfare or to minimise social cost. In this book, Emmanuel Voyiakis claims that private law ought to make our responsibilities to others depend on the opportunities we have to affect how things will go for us. Drawing on the work of HLA Hart and TM Scanlon, he argues that private law principles that require us to bear certain practical burdens in our relations with others are justified as long as those principles provide us with certain opportunities to choose what will happen to us, and having those opportunities is something we have reason to value.The book contrasts this ''value-of-choice'' account with its wrong- and social cost-based rivals, and applies it to familiar problems of contract and tort law, including whether liability should be negligence-based or stricter; whether insurance should matter in the allocation of the burden of repair; how far private law should make allowance for persons of limited capacities; when a contract term counts as ''unconscionable'' or ''unfair''; and when tort law should hold a person vicariously liable for another''s mistakes.

Some say that private law ought to correct wrongs or to protect rights. Others say that private law ought to maximise social welfare or to minimise social cost. In this book, Emmanuel Voyiakis claims that private law ought to make our responsibilities to others depend on the opportunities we have to affect how things will go for us. Drawing on the work of HLA Hart and TM Scanlon, he argues that private law principles that require us to bear certain practical burdens in our relations with others are justified as long as those principles provide us with certain opportunities to choose what will happen to us, and having those opportunities is something we have reason to value.The book contrasts this ''value-of-choice'' account with its wrong- and social cost-based rivals, and applies it to familiar problems of contract and tort law, including whether liability should be negligence-based or stricter; whether insurance should matter in the allocation of the burden of repair; how far private law should make allowance for persons of limited capacities; when a contract term counts as ''unconscionable'' or ''unfair''; and when tort law should hold a person vicariously liable for another''s mistakes.

Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague and, even when it is clear, the content itself is sometimes vague.This monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law. The aim is to give plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? It argues that vagueness in the law is sometimes a good thing, although its value should not be overestimated.It also proposes a strategy for resolving borderline cases, arguing that textualism and intentionalism – two leading theories of legal interpretation – often complement rather than compete with each other.

Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague and, even when it is clear, the content itself is sometimes vague.This monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law. The aim is to give plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? It argues that vagueness in the law is sometimes a good thing, although its value should not be overestimated.It also proposes a strategy for resolving borderline cases, arguing that textualism and intentionalism – two leading theories of legal interpretation – often complement rather than compete with each other.

This open access book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices – whether taking place in a courtroom, classroom, law firm, or elsewhere – we routinely and unproblematically talk of the activities of creating and applying the law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable.The book considers the relevance of distinguishing between law-creation and law-application and how this transcends the boundaries of jurisprudential enquiry. It argues that such a distinction is also a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels that conceal a power relationship between public authorities and citizens that is very different from the one on which constitutional democracy is grounded.After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language, and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

The received view on the nature of legal authority contains the idea that a sound account of legitimate authority will explain how a legal authority has a right to command and the addressee a duty to obey. The received view fails to explain, however, how legal authority truly operates upon human beings as rational creatures with specific psychological makeups. This book takes a bottom-up approach, beginning at the microscopic level of agency and practical reason and leading to the justificatory framework of authority. The book argues that an understanding of the nature of legal normativity involves an understanding of the nature and structure of practical reason in the context of the law, and advances the idea that legal authority and normativity are intertwined. This point can be summarised thus: if we are able to understand both how the agent exercises his or her practical reason under legal directives and commands and how the agent engages his or her practical reason by following legal rules grounded on reasons for actions as good-making characteristics, then we can fully grasp the nature of legal authority and legal normativity. Using the philosophies of action enshrined in the works of Elisabeth Anscombe, Aristotle and Thomas Aquinas, the study explains practical reason as diachronic future-directed intention in action and argues that this conception illuminates the structure of practical reason of the legal rules' addressees. The account is comprehensive and enables us to distinguish authoritative and normative legal rules in just and good legal systems from 'apparent' authoritative and normative legal rules of evil legal systems. At the heart of the book is the methodological view of a 'practical turn' to elucidate the nature of legal normativity and authority.

This new book advances a fresh philosophical account of the relationship between the legislature and courts, opposing the common conception of law, in which it is legislatures that primarily create the law, and courts that primarily apply it. This conception has eclectic affinities with legal positivism, and although it may have been a helpful intellectual tool in the past, it now increasingly generates more problems than it solves. For this reason, the author argues, legal philosophers are better off abandoning it. At the same time they are asked to dismantle the philosophical and doctrinal infrastructure that has been based on it and which has been hitherto largely unquestioned. In its place the book offers an alternative framework for understanding the role of courts and the legislature; a framework which is distinctly anti-positivist and which builds on Ronald Dworkin’s interpretive theory of law. But, contrary to Dworkin, it insists that legal duty is sensitive to the position one occupies in the project of governing; legal interpretation is not the solitary task of one super-judge, but a collaborative task structured by principles of institutional morality such as separation of powers which impose a moral duty on participants to respect each other’s contributions. Moreover this collaborative task will often involve citizens taking an active role in their interaction with the law.

Some say that private law ought to correct wrongs or to protect rights. Others say that private law ought to maximise social welfare or to minimise social cost. In this book, Emmanuel Voyiakis claims that private law ought to make our responsibilities to others depend on the opportunities we have to affect how things will go for us. Drawing on the work of HLA Hart and TM Scanlon, he argues that private law principles that require us to bear certain practical burdens in our relations with others are justified as long as those principles provide us with certain opportunities to choose what will happen to us, and having those opportunities is something we have reason to value.The book contrasts this ‘value-of-choice’ account with its wrong- and social cost-based rivals, and applies it to familiar problems of contract and tort law, including whether liability should be negligence-based or stricter; whether insurance should matter in the allocation of the burden of repair; how far private law should make allowance for persons of limited capacities; when a contract term counts as ‘unconscionable’ or ‘unfair’; and when tort law should hold a person vicariously liable for another’s mistakes.

This collection of essays takes as its starting point Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy, a seminal work on Kant’s thinking about law, which also treats many of the contemporary issues of legal and political philosophy. The essays offer readings and elucidations of Ripstein’s thought, dispute some of his claims and extend some of his themes within broader philosophical contexts, thus developing the significance of Ripstein’s ideas for contemporary legal and political philosophy.All of the essays are contributions to normative philosophy in a broadly Kantian spirit. Prominent themes include rights in the body, the relation between morality and law, the nature of coercion and its role in legal obligation, the role of indeterminacy in law, the nature and justification of political society and the theory of the state. This volume will be of interest to a wide audience, including legal scholars, Kant scholars, and philosophers with an interest in Kant or in legal and political philosophy.

This book invites newcomers to analytical legal philosophy to reconsider the terms in which they are accustomed to describing and defending their jurisprudential allegiances. It argues that familiar taxonomic labels such as legal positivism, natural law theory and legal interpretivism are poor guides to the actual diversity of views on the nature and normativity of law, mainly because they fail to carve up the reality of jurisprudential disagreement at its joints. These joints, the author suggests, are elusive because the semantics of law systematically misplaces them. Their true nature resides in the metaontological and metanormative features that dictate or indicate the target of a theory’s jurisprudential commitments. The book advocates a new vocabulary for articulating these commitments without eliminating the use of familiar criteria of division among competing theories of law. The resulting picture is a much broader platform of meaningful disagreement about the nature and grounds of legal truth and legal normativity. Albeit based on a factualist-cognitivist understanding of the sources and grounds of law, the book reserves ample room for the unconvinced. Those suspicious of the project of “ontologising” theoretical disagreements in law can avail themselves of the quietist or anti-metaphysical avenue that the book’s alternative taxonomy also makes available. The humblest path to law’s reality may not be metaphysically ambitious after all.

This book invites newcomers to analytical legal philosophy to reconsider the terms in which they are accustomed to describing and defending their jurisprudential allegiances. It argues that familiar taxonomic labels such as legal positivism, natural law theory and legal interpretivism are poor guides to the actual diversity of views on the nature and normativity of law, mainly because they fail to carve up the reality of jurisprudential disagreement at its joints. These joints, the author suggests, are elusive because the semantics of law systematically misplaces them. Their true nature resides in the metaontological and metanormative features that dictate or indicate the target of a theory''s jurisprudential commitments. The book advocates a new vocabulary for articulating these commitments without eliminating the use of familiar criteria of division among competing theories of law. The resulting picture is a much broader platform of meaningful disagreement about the nature and grounds of legal truth and legal normativity. Albeit based on a factualist-cognitivist understanding of the sources and grounds of law, the book reserves ample room for the unconvinced. Those suspicious of the project of “ontologising” theoretical disagreements in law can avail themselves of the quietist or anti-metaphysical avenue that the book''s alternative taxonomy also makes available. The humblest path to law''s reality may not be metaphysically ambitious after all.

This book invites newcomers to analytical legal philosophy to reconsider the terms in which they are accustomed to describing and defending their jurisprudential allegiances. It argues that familiar taxonomic labels such as legal positivism, natural law theory and legal interpretivism are poor guides to the actual diversity of views on the nature and normativity of law, mainly because they fail to carve up the reality of jurisprudential disagreement at its joints. These joints, the author suggests, are elusive because the semantics of law systematically misplaces them. Their true nature resides in the metaontological and metanormative features that dictate or indicate the target of a theory''s jurisprudential commitments. The book advocates a new vocabulary for articulating these commitments without eliminating the use of familiar criteria of division among competing theories of law. The resulting picture is a much broader platform of meaningful disagreement about the nature and grounds of legal truth and legal normativity. Albeit based on a factualist-cognitivist understanding of the sources and grounds of law, the book reserves ample room for the unconvinced. Those suspicious of the project of “ontologising” theoretical disagreements in law can avail themselves of the quietist or anti-metaphysical avenue that the book''s alternative taxonomy also makes available. The humblest path to law''s reality may not be metaphysically ambitious after all.

This is the first book to bring together distinguished jurisprudential theorists, as well as up-and-coming scholars, to critically assess the nature of legal reasoning. The volume is divided into 3 parts:The first part, General Jurisprudence and Legal Reasoning, addresses issues at the intersection of general jurisprudence - those pertaining to the nature of law itself - and legal reasoning.The second part, Rules and Reasons, addresses two concepts central to two prominent types of theory of legal reasoning.The essays in the third and final part, Doctrine and Practice, delve into the mechanics of legal practice and doctrine, from a legal reasoning perspective.

This is the first book to bring together distinguished jurisprudential theorists, as well as up-and-coming scholars, to critically assess the nature of legal reasoning. The volume is divided into 3 parts:The first part, General Jurisprudence and Legal Reasoning, addresses issues at the intersection of general jurisprudence - those pertaining to the nature of law itself - and legal reasoning.The second part, Rules and Reasons, addresses two concepts central to two prominent types of theory of legal reasoning.The essays in the third and final part, Doctrine and Practice, delve into the mechanics of legal practice and doctrine, from a legal reasoning perspective.

This is the first book to bring together distinguished jurisprudential theorists, as well as up-and-coming scholars, to critically assess the nature of legal reasoning. The volume is divided into 3 parts:The first part, General Jurisprudence and Legal Reasoning, addresses issues at the intersection of general jurisprudence - those pertaining to the nature of law itself - and legal reasoning.The second part, Rules and Reasons, addresses two concepts central to two prominent types of theory of legal reasoning.The essays in the third and final part, Doctrine and Practice, delve into the mechanics of legal practice and doctrine, from a legal reasoning perspective.

This book provides a philosophical critique of legal relations between the EU and ‘distant strangers’ neither located within, nor citizens of, its Member States. Starting with the EU’s commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in ‘all its relations with the wider world’, Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant’s philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant’s final and comprehensive statement of his general theory of law.The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace.The thesis on which this book was based was awarded the 2020 René Cassin Thesis Prize (English section).

This book provides a philosophical critique of legal relations between the EU and ''distant strangers'' neither located within, nor citizens of, its Member States. Starting with the EU''s commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in ''all its relations with the wider world'', Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant''s philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant''s final and comprehensive statement of his general theory of law.The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace.The thesis on which this book was based was awarded the 2020 René Cassin Thesis Prize (English section).

This book provides a philosophical critique of legal relations between the EU and ''distant strangers'' neither located within, nor citizens of, its Member States. Starting with the EU''s commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in ''all its relations with the wider world'', Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant''s philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant''s final and comprehensive statement of his general theory of law.The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace.The thesis on which this book was based was awarded the 2020 René Cassin Thesis Prize (English section).

This timely and compelling book delves into the dynamic interpretation of Hans Kelsen’s General Theory of Norms through the lens of 21st-century jurisprudential debates. Engaging with key contemporary philosophical concepts such as fictionalism in the philosophy of science, explanation and understanding, and supervenience, this book sheds new light on Kelsen’s original ideas.By offering a contemporary interpretation of his later work, it re-examines classic concepts known from the ‘Pure Theory of Law’ like the basic norm, the separation of ‘is’ and ‘ought,’ validity and efficacy, imputation, and the concept of the legal norm. Integrating modern philosophy with Kelsen’s lasting ideas, this book presents a novel theoretical landscape, inviting readers to explore fresh perspectives on Kelsen’s contributions to legal theory and emphasising its enduring relevance.

This timely and compelling book delves into the dynamic interpretation of Hans Kelsen''s General Theory of Norms through the lens of 21st-century jurisprudential debates. Engaging with key contemporary philosophical concepts such as fictionalism in the philosophy of science, explanation and understanding, and supervenience, this book sheds new light on Kelsen''s original ideas.By offering a contemporary interpretation of his later work, it re-examines classic concepts known from the ''Pure Theory of Law'' like the basic norm, the separation of ''is'' and ''ought,'' validity and efficacy, imputation, and the concept of the legal norm. Integrating modern philosophy with Kelsen''s lasting ideas, this book presents a novel theoretical landscape, inviting readers to explore fresh perspectives on Kelsen''s contributions to legal theory and emphasising its enduring relevance.

This timely and compelling book delves into the dynamic interpretation of Hans Kelsen''s General Theory of Norms through the lens of 21st-century jurisprudential debates. Engaging with key contemporary philosophical concepts such as fictionalism in the philosophy of science, explanation and understanding, and supervenience, this book sheds new light on Kelsen''s original ideas.By offering a contemporary interpretation of his later work, it re-examines classic concepts known from the ''Pure Theory of Law'' like the basic norm, the separation of ''is'' and ''ought,'' validity and efficacy, imputation, and the concept of the legal norm. Integrating modern philosophy with Kelsen''s lasting ideas, this book presents a novel theoretical landscape, inviting readers to explore fresh perspectives on Kelsen''s contributions to legal theory and emphasising its enduring relevance.

This book invites newcomers to analytical legal philosophy to reconsider the terms in which they are accustomed to describing and defending their jurisprudential allegiances. It argues that familiar taxonomic labels such as legal positivism, natural law theory and legal interpretivism are poor guides to the actual diversity of views on the nature and normativity of law, mainly because they fail to carve up the reality of jurisprudential disagreement at its joints. These joints, the author suggests, are elusive because the semantics of law systematically misplaces them. Their true nature resides in the metaontological and metanormative features that dictate or indicate the target of a theory’s jurisprudential commitments. The book advocates a new vocabulary for articulating these commitments without eliminating the use of familiar criteria of division among competing theories of law. The resulting picture is a much broader platform of meaningful disagreement about the nature and grounds of legal truth and legal normativity. Albeit based on a factualist-cognitivist understanding of the sources and grounds of law, the book reserves ample room for the unconvinced. Those suspicious of the project of “ontologising” theoretical disagreements in law can avail themselves of the quietist or anti-metaphysical avenue that the book’s alternative taxonomy also makes available. The humblest path to law’s reality may not be metaphysically ambitious after all.

This book provides a philosophical critique of legal relations between the EU and ‘distant strangers’ neither located within, nor citizens of, its Member States. Starting with the EU’s commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in ‘all its relations with the wider world’, Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant’s philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant’s final and comprehensive statement of his general theory of law.The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace.The thesis on which this book was based was awarded the 2020 René Cassin Thesis Prize (English section).

This open access book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices – whether taking place in a courtroom, classroom, law firm, or elsewhere – we routinely and unproblematically talk of the activities of creating and applying the law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable.The book considers the relevance of distinguishing between law-creation and law-application and how this transcends the boundaries of jurisprudential enquiry. It argues that such a distinction is also a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels that conceal a power relationship between public authorities and citizens that is very different from the one on which constitutional democracy is grounded.After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language, and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine.The ebook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on bloomsburycollections.com.

This book introduces a novel puzzle, the 'Lorry Driver Paradox', to advance our understanding of moral responsibility beyond current paradigms, to connect moral philosophy and legal scholarship in new ways, and to break new ground in the ethics of AI. Part 1 introduces the Lorry Driver Paradox as a set of three individually plausible but jointly inconsistent claims. It then develops and defends the concept of strict moral answerability as the most effective solution, making it the central idea of the book, alongside an account of how ‘taking responsibility’ could amount to a new, hitherto neglected normative power and an exploration of the significance of apologies in our social practices.Part 2 extends this discussion to the context of artificial intelligence, proposing a major shift in how we currently think about responsibility and AI. It challenges the conventional notion of AI-generated ‘responsibility gaps’ and, instead, proposes the idea of ‘responsibility abundance’. This reframing, it is argued, offers distinct theoretical, dialectical, and practical advantages.Significant parts of these arguments draw on legal scholarship, particularly considerations about reverse burdens of proof in criminal law and the waiving of state immunity in public international law. On these grounds, the book also pursues the methodological idea of a ‘legal lead’, that is, the idea that we can advance our understanding of moral responsibility by investigating (selected aspects of) legal responsibility, and not just the other way around.

This book introduces a novel puzzle, the 'Lorry Driver Paradox', to advance our understanding of moral responsibility beyond current paradigms, to connect moral philosophy and legal scholarship in new ways, and to break new ground in the ethics of AI. Part 1 introduces the Lorry Driver Paradox as a set of three individually plausible but jointly inconsistent claims. It then develops and defends the concept of strict moral answerability as the most effective solution, making it the central idea of the book, alongside an account of how 'taking responsibility' could amount to a new, hitherto neglected normative power and an exploration of the significance of apologies in our social practices. Part 2 extends this discussion to the context of artificial intelligence, proposing a major shift in how we currently think about responsibility and AI. It challenges the conventional notion of AI-generated 'responsibility gaps' and, instead, proposes the idea of 'responsibility abundance'. This reframing, it is argued, offers distinct theoretical, dialectical, and practical advantages. Significant parts of these arguments draw on legal scholarship, particularly considerations about reverse burdens of proof in criminal law and the waiving of state immunity in public international law. On these grounds, the book also pursues the methodological idea of a 'legal lead', that is, the idea that we can advance our understanding of moral responsibility by investigating (selected aspects of) legal responsibility, and not just the other way around.

This book introduces a novel puzzle, the 'Lorry Driver Paradox', to advance our understanding of moral responsibility beyond current paradigms, to connect moral philosophy and legal scholarship in new ways, and to break new ground in the ethics of AI. Part 1 introduces the Lorry Driver Paradox as a set of three individually plausible but jointly inconsistent claims. It then develops and defends the concept of strict moral answerability as the most effective solution, making it the central idea of the book, alongside an account of how 'taking responsibility' could amount to a new, hitherto neglected normative power and an exploration of the significance of apologies in our social practices. Part 2 extends this discussion to the context of artificial intelligence, proposing a major shift in how we currently think about responsibility and AI. It challenges the conventional notion of AI-generated 'responsibility gaps' and, instead, proposes the idea of 'responsibility abundance'. This reframing, it is argued, offers distinct theoretical, dialectical, and practical advantages. Significant parts of these arguments draw on legal scholarship, particularly considerations about reverse burdens of proof in criminal law and the waiving of state immunity in public international law. On these grounds, the book also pursues the methodological idea of a 'legal lead', that is, the idea that we can advance our understanding of moral responsibility by investigating (selected aspects of) legal responsibility, and not just the other way around.