Law's Humility Enlarging the Scope of Jurisprudential Disagreement : Enlarging the Scope of JurisprudentialDisagreement

This book advances a philosophical account of a substantive, albeit less elaborated, variant of jurisprudential disagreement about which kinds of non-legal facts determine the content and the normative force of the law. At the most abstract level legal philosophers disagree about the proper methodology of jurisprudence. Opinions are divided as to whether the proper method of philosophical inquiry about law consists in refining our description of what a legal practice is or, conversely, in justifying the practice of law from a normative vantage point. Further downstream, the bulk of jurisprudential controversy centres on the concept or the nature of law. Debates in this domain are usually cast in modal or essentialist terms such that the main question becomes whether legal validity can be attributed to norms promulgated by morally wicked governments or whether by its essence law serves a moral aim. Without suppressing the relevance of formal disputes about the methodology of jurisprudence or the nature of law, the content of the book focuses on what makes the grounds of facts about legal content and legal normativity philosophically contestable. For instance, two judges may converge in their interpretation of a particular statute or precedent but disagree about ‘the content of the law’ because they diverge in their beliefs about whether statutes and precedents are the sole determinants of legal content. Perhaps less commonly, disagreement may also erupt about the ‘force of the law’, namely, about what makes legal authority or a particular institutional arrangement practically compelling. Philosophers of both a positivist and anti-positivist persuasion commonly refer to instances of this type of dispute about the grounding of a class of facts as ‘theoretical disagreements’. Theoretical disagreement about the content and the force of the law is used as a term of art to be contrasted with empirical and doctrinal conceptions of legal disagreement commonly encountered in the context of legal advocacy, administrative and judicial practice about whether a legal rule applies to a particular circumstance. Whereas the latter type of disagreement is resolvable by consulting the appropriate legal materials (statutes, court rulings, executive decrees etc), the former type of disagreement invites us to inquire into what grounds the fact that a legal rule or principle is applicable in a given context or, respectively, what makes it the case that this rule or principle has a binding effect on its addressees. Volume 11 in the series Law and Practical Reason Contents 8 Introduction 10 1. From Legalese to Ontologese 16 I. Dworkin's Vision of Jurisprudential Disagreement 19 II. The Site and Scope of Jurisprudential Disagreement 22 III. Legal Facts and Legal Propositions 29 2. Relating Legal Propositions to Legal Facts 33 I. Legal Truthmakers 37 II. From a Theory of Truth to a Theory of Truthmaking 39 III. Legal Propositionalism 41 IV. Legal Propositionalism without Legal Truthmakers 51 3. Relating Legal Facts to Legal Propositions 55 I. Two Hypotheses about Jurisprudential Perspectivalism 61 II. Non-perspectival Jurisprudential Statements 71 III. Are Constitutive Disputes Merely Verbal? 78 IV. Constitutive Disagreement and the Practical Point of View 82 4. Two Levels of Disagreement about the Metaphysics of Law 86 I. Legal Constitution and its Discontents 89 II. Objectionable Jurisprudential Commitments 114 III. Disagreement over Legal Grounding 118 5. Resisting Ordinary Reasons Imperialism 140 I. Axes of Normative Relevance 142 II. Normative Roles 146 III. Rational Requirements, Asymmetry and Response-Constraint 153 IV. Thick Evaluation, Global Judgement and Constitutive Impact 156 6. The Metric Approach to Legal Normativity 165 I. The Limits of the Metric Approach 169 II. Legal Facts as Nexus Reasons 172 7. Two Levels of Disagreement about the Normativity of Law 188 I. First-Order Disagreement about the Grounds of Nexus Facts 190 II. Second-Order Disagreement about the Normativity of Legal Facts 194 Bibliography 217 Index 224 "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"-- Résumé de l'éditeur "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"-- Provided by publisher