Kevin Lee

Brian Z. Tamanaha has written extensively on realism in jurisprudence, but in his Realistic Theory of Law (2018), he uses "realism" in a commonplace way to ground a rough outline of legal history. While he refers to his method as genealogical, he does not acknowledge the complex tensions in the development of the philosophical use of that term from Nietzsche to Foucault, and the complex epistemological issues that separate them. While the book makes many interesting points, the methodological concerns outweigh them in the overall assessment of the value of the work.

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would reconstruct it. Nor can the purely formal modern conception of self-evidence provide a foundation for practical reason. This raises some doubt as to whether there can be self-evident principles of practical reason as Finnis suggests. The article contributes to the analysis of the Finnis reconstruction of the natural law by providing a rigorous analysis of his claim for self-evidence. It frames this analysis historically, suggesting the roles that certainty and mystery play in the apprehension of moral meaning.

This essay introduces the philosophy of legal information (PLI), which is a response to the radical changes brought about in philosophy by the information revolution. It reviews in some detail the work of Luciano Floridi, who is an influential advocate for an information turn in philosophy that he calls the philosophy of information (PI). Floridi proposes that philosophers investigate the conceptual nature of information as it currently exists across multiple disciplines. He shows how a focus on the informational nature of traditional philosophical questions can be transformative for philosophy and for human self-understanding. The philosophy of legal information (PLI) proposed here views laws as a body of information that is stored, manipulated, and analyzed through multiple methods, including the computational methodologies. PLI offers resources for evaluating the ethical and political implications of legal infomatics (also known as "legal information systems"). This essay introduces PLI. Parts I and II describe Floridi's philosophy of information. First, Part I introduces the transformation in the concept of information that occurred in the twentieth century through the work of Alan Turning and Claude Shannon. Part II describes Floridi's approaches to traditional questions in epistemology, ontology, and ethics. Part III applies PI to the analysis of legal positivism. It suggests that PLI is a viable project that has potential for transforming the understanding law in the information age.

Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (ICT) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives. One such alternative is Structural Realism (SR), which is influential among the natural sciences, and especially physics. “Informational Structural Realism,” (ISR) is a variant of SR that was introduced by Luciano Floridi. Unlike the coherentist theories, ISR promotes examination of the connections among types of information and informational structures. It is an important shift for legal theory today, since the challenges that the ICT presents have to do with pattern recognition across vast domains of diverse data. An informational jurisprudence is now required to understand the issues emerging from the ICT.