Matthew Henry Kramer

Two recent high-quality articles, including one in this journal, have challenged the Inclusivist and Incorporationist varieties of legal positivism. David Lefkowitz and Michael Giudice, writing from perspectives heavily influenced by the work of Joseph Raz, have endeavored—in sophisticated and interestingly distinct ways—to vindicate Raz's contention that moral principles are never among the law-validating criteria in any legal system nor among the laws that are applied as binding bases for adjudicative and administrative decisions in such a system. The present article responds to their defenses of Raz's Exclusive Legal Positivism

Legal positivism’s multi-faceted insistence on the separability of law and morality includes an insistence on the thoroughly conventional status of legal norms as legal norms. Yet the positivist affirmation of the conventionality of law may initially seem at odds with the mind-independence of the existence and contents and implications of legal norms. Mind-independence, a central aspect of legal objectivity, has been seen by some theorists as incompatible with the mind-dependence of conventions. Such a perception of incompatibility has led some anti-positivist theorists to reject the notion of law’s conventionality, and has led some positivist theorists to query law’s mind-independence. What will be contended here is that both camps are mistaken.

How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law.

This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism, the paper highlights both their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends—in line with my earlier work on these matters—that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them.

This note will challenge G. A. Cohen's view of the interaction between legal systems and economic structures; such interaction raises the so‐called problem of legality, which Cohen sets out to solve in the eighth chapter of Karl Marx's Theory of History . In the course of this note, we shall interrogate the presumed rigor of Cohen's theory of base/superstructure relations, to which his understanding of law is central. His approach will not be simply destroyed, but will be resituated in a network of problems that can highlight a certain fissure between his aspirations and his performance

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, patterning, perspective, and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory

What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry. As Kramer shows, objectivity and the rule of law are complicated phenomena, each comprising a number of distinct though overlapping dimensions. Although the connections between objectivity and the rule of law are intimate, they are also densely multi-faceted.

This essay argues against the commonly held view that "ought" implies "can" in the domain of morality. More specifically, I contest the notion that nobody should ever be held morally responsible for failing to avoid the infliction of any harm that he or she has not been able to avoid through all reasonably feasible precautions in the carrying out of some worthwhile activity. The article explicates the concept of a moral right in order to show why violations of moral rights can occur even when no one has acted wrongfully in any fashion. In so doing, it will effectively be maintaining that strict liability (i.e., liability irrespective of the presence or absence of culpability) exists in morality as well as in law. When we take account of the distinction between exoneration and extenuation, we can see that scrupulously thorough precautions are never sufficient to constitute an excuse in morality. Having made that point with some extended examples, the article goes on to consider a number of possible objections - objections that lead into discussions of some basic distinctions within moral philosophy and some central principles within deontic logic.

In this wide-ranging investigation of many prominent issues in contemporary legal, political, and moral philosophy, Matthew Kramer combines penetrating critiques with original theorizing as he examines the writings of numerous major theorists (including Ronald Dworkin, H. L. A. Hart, Alan Gewirth, David Lyons, Ronald Coase, John Finnis, Jules Coleman, Anthony Kronman, and Richard Posner). While Kramer argues with the rigor that is the hallmark of the tradition of analytic philosophy, his inquiries extend not only to that tradition but also to such other traditions as Aristotelianism and Continental philosophy and Legal Realism.

Some important recent articles, including one in this journal, have sought to devise theories of rights that can transcend the longstanding debate between the Interest Theory and the Will Theory. The present essay argues that those efforts fail and that the Interest Theory and the Will Theory withstand the criticisms that have been levelled against them. To be sure, the criticisms have been valuable in that they have prompted the amplification and clarification of the two dominant theories of rights; but their upshot has been to reveal the need for the improvement, rather than the abandonment, of those theories

This article seeks to parry Ronald Dworkin’s assaults on the legal-positivist thesis that the authoritative norms in any legal system are ascertained by reference to some overarching set of criteria that may or may not require the making of moral judgments. Four main lines of argument are presented. First, Dworkin does not establish that judges disagree with one another at a criterial level in easy cases; second, even if criterial disagreements are indeed present (at least subterraneously) in all cases, they will be quite sharply limited by the need for regularity at the level of outcomes in a functional legal system; third, Dworkin errs in thinking that legal conventions must be static, and he further errs in thinking that the adjudicative practices of American law can plausibly be portrayed as based solely on convictions and not on conventions. Finally, with his recent reflections on the metaphysics of morals, Dworkin helps to reveal the resilience of a doctrine (viz., soft or inclusive positivism) that he seeks to confute.

Edited by leading contributors to the literature, Freedom: An Anthology is the most complete anthology on social, political and economic freedom ever compiled. Offers a broad guide to the vast literature on social, political and economic freedom. Contains selections from the best scholarship of recent decades as well as classic writings from Hobbes, Locke, Rousseau and Kant among others. General and sectional introductions help to orient the reader. Compiled and edited by three important contributors to the field.

This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and the identification of basic legal entitlements