•  91
    Intentions in Artifactual Understandings of Law
    In Luka Burazin, Kenneth Einar Himma, Corrado Roversi & Paweł Banaś (eds.), The Artifactual Nature of Law, Edward Elgar. pp. 16-36. 2022.
    The primary aim of this chapter is to show that several missteps made by others in in their thinking about law as an artefact are due to misconceptions about the role of intentions in understanding law as an artefact. I first briefly recap my own contention that law is a genre of institutionalized abstract artefacts (put forth in The Functions of Law (OUP 2016) and subsequent papers), mostly following Searle’s understanding of institutions and Thomasson’s understanding of public artefacts. I hig…Read more
  •  97
    An Artefactual Theory of Precedent
    In Timothy Endicott, Hafsteinn Dan Kristjánsson & Sebastian Lewis (eds.), Philosophical Foundations of Precedent, Oxford University Press. pp. 268-280. 2023.
    This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common law are no…Read more
  •  356
    Medical Complicity and the Legitimacy of Practical Authority
    Ethics, Medicine and Public Health 12. 2020.
    If medical complicity is understood as compliance with a directive to act against the professional's best medical judgment, the question arises whether it can ever be justified. This paper will trace the contours of what would legitimate a directive to act against a professional's best medical judgment (and in possible contravention of her oath) using Joseph Raz's service conception of authority. The service conception is useful for basing the legitimacy of authoritative directives on the abilit…Read more
  •  8
    Replies to comments on The Functions of Law
    Jurisprudence 10 (2): 255-280. 2019.
    Volume 10, Issue 2, June 2019, Page 255-280.
  • Law is an Institution an Artifact and a Practice
    In Luka Burazin, Kenneth Einar Himma & Corrado Roversi (eds.), Law as an Artifact, Oxford University Press. pp. 177-191. 2018.
    I have argued that law is a genre of institutionalized abstract artifact, meaning that laws are purposive products of human creation designed to signal norms of behavior with respect to them. Its institutional nature is seen in the fact that it is a system of artificial statuses that convey deontic powers to status holders understood in their institutional roles. Following Searle in explaining institutions, however, is also to see the institution as the 'continuing possibility of a practice.' He…Read more
  •  50
    The Institutionality Of Legal Validity
    Philosophy and Phenomenological Research 100 (2): 277-301. 2020.
    The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A.…Read more
  •  84
    Critical Reception of Raz’s Theory of Authority (review)
    Philosophy Compass 6 (11): 777-785. 2011.
    This is a canvass to the critical reaction to Joseph Raz’s service conception of authority, as well as actual or possible replies by Raz. Familiarity is assumed with the theory itself, covered in a previous article. The article focuses primarily on direct criticisms of Raz’s theory, rather than replies developed in the context of a theorist’s wider project.
  •  87
    Functions in Jurisprudential Methodology
    Philosophy Compass 8 (5): 447-456. 2013.
    This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John Finnis, and Joseph Raz. …Read more
  •  493
    Law as Plan and Artefact
    Jurisprudence 7 (2): 325-340. 2016.
    Scott Shapiro’s theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more us…Read more
  •  1131
    Law is not (best considered) an essentially contested concept
    International Journal of Law in Context 7 209-232. 2011.
    I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore shou…Read more
  •  1413
    The Anarchist Official: A Problem for Legal Positivism
    Australian Journal of Legal Philosophy 36 89-112. 2011.
    I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist and function when its …Read more
  •  597
    Less Evidence, Better Knowledge
    McGill Law Journal 60 (2): 173-214. 2015.
    In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack …Read more
  •  498
  •  105
    The Functions of Law
    Oxford University Press. 2016.
    What is the nature of law and what is the best way to discover it? This book argues that law is best understood in terms of the social functions it performs wherever it is found in human society. In order to support this claim, law is explained as a kind of institution and as a kind of artefact. To say that it is an institution is to say that it is designed for creating and conferring special statuses to people so as to alter their rights and responsibilities toward each other. To say that it is…Read more
  •  1316
    Defending the possibility of a neutral functional theory of law
    Oxford Journal of Legal Studies 29 (1): 91. 2008.
    I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of a neutral functional theory, addressin…Read more
  •  117
    Joseph Raz’s Theory of Authority (review)
    Philosophy Compass 6 (12): 884-894. 2011.
    Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.
  • Under John Searle’s theory of institutional facts, the law can be understood both as an institution governed by foundational documents and practices, and as a method for creating new institutions through the codification of the assignment of functions, usually of the form ‘X counts as Y in circumstances C’. The architect Christopher Alexander’s notion of pattern languages, schematic templates for problem-solving widely adopted by computer programmers, can be developed within a legal system as a …Read more
  •  885
    Notions of procedural justice alone are sufficient to support evidentiary exclusions in a wide variety of legal and law-like institutions that focus on conflict resolution, including courts. Special attention is paid to the relevance and need for exclusion of parties’ own assessments of the value of their claims.
  •  138
    Archimedean metaethics defended
    Metaphilosophy 39 (4-5): 508-529. 2008.
    Abstract: We sometimes say our moral claims are "objectively true," or are "right, even if nobody believes it." These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that "steps outside" the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skepti…Read more
  •  532
    Law’s Artifactual Nature: How Legal Institutions Generate Normativity
    In George Pavlakos & Veronica Rodriguez-Blanco (eds.), Reasons and Intentions in Law and Practical Agency, Cambridge University Press. pp. 247-266. 2015.
    I argue that law is best understood as an institutionalized abstract artifact. Using the ideas of John Searle on institutions and Amie Thomasson on artifacts, I show how the law is capable of generating new reasons for action, arguing against recent work by David Enoch who holds that legal reason-giving is ultimately a form of triggering conditional reasons.
  •  459
    Law's Authority is not a Claim to Preemption
    In Wilfrid J. Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law, Oxford University Press. pp. 51. 2013.
    Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt our contrary reasons and to leave open…Read more
  •  387
    Social Structure and Responsibility
    Loyola Poverty Law Journal 5 1-26. 1999.
    Economic success in competitive systems requires resource redistribution to those who fail. Once we recognize that success in competitive endeavors depends meaningfully on the failure of others, policy implications that involve strong redistributive mechanisms should be drawn. Particular attention is paid to the role of education in fostering a sense of self-esteem necessary to counter the effects of internalized competition.
  •  53
    Highlighting the distinct approaches to behavior guidance employed by law and aspirational religious institutions like Buddhism, focusing on the work of Lon Fuller. There is importance to both baseline or duty-centered rules such as found primarily in criminal law and deontic morality, as well as aspirational guidance principles that are found in religious law, virtue ethics, and sometimes seen in civil law. However, the specific assumptions and aims of these two modes of guidance must be harmon…Read more