Leslie Green

A collection of the author's new and reprinted papers in general jurisprudence. Chapters: Introduction: A Philosophy of Legal Philosophy Law, As Such 1. The Concept of Law Revisited 2. Law as a Means 3. Custom and Convention at the Foundations of Law 4. Realism and the Sources of Law 5. Feminism in Jurisprudence Law and Morality 6. The Germ of Justice 7. The Inseparability of Law and Morals 8. The Morality in Law 9. The Role of a Judge 10. Should Law Improve Morality? The Demands of Law 11. Hume on Allegiance 12. Associative Obligations and the State 13. The Forces of Law 14. The Duty to Govern

Surveying developments in a quarter-century of Anglophone legal philosophy, Leslie Green argues that there has been progress in some problems, such as the understanding of rules and reasons in the law; that in other areas —in particular, in discussions of the relationship between law and morality— there has been a marked narrowing of attention; and that with respect to the relationship between law and coercion, we have advanced very little beyond HLA Hart’s 1961 argument against reductionism. Here, we have lost sight of one of the reasons for attending to the coercive aspect of law in the first place: that this is the most obvious way that law exercises power. Finally, the recent ‘methodological turn’ in jurisprudence is examined. To its benefit, the subject has become more self-conscious about its own status and methods. The paper concludes by exploring Dworkin’s revival of Fuller’s idea that a theory of law must be potentially useful to a lawyer or judge. Resisting this view, Green holds that while law is practical, a theory of the nature of law must answer to the truth about law. Unlike law itself, jurisprudence must be true in order to be good.Resumen:Al sopesar los avances de la filosofía jurídica angloparlante durante 25 años, Leslie Green sostiene que ha habido progreso en algunos problemas, como el del entendimiento de las reglas y las razones en el derecho; mientras que en otras áreas —en particular, en las discusiones sobre la relación entre el derecho y la moral— ha habido un desinterés creciente; y que con respecto a la relación entre el derecho y la coacción, se ha avanzado muy poco desde aquel argumento que H. L. A. Hart presentara, en 1961, contra el reduccionismo. En este punto se ha perdido de vista una de las razones centrales para ocuparse del aspecto coactivo del derecho: que ésta es la manera más directa en que el derecho ejerce su poder. Por último, el autor examina el reciente “giro metodológico” dentro de la filosofía del derecho; por fortuna, la materia ahora tiene más conciencia en cuanto a su estatus y a sus métodos. El ensayo concluye explorando la manera en que Dworkin retoma la idea de Fuller de que la teoría del derecho debe tener la capacidad de ser útil a los abogados y a los jueces. En contraste con esta perspectiva, Green aduce que si bien el derecho es práctico, una teoría sobre la naturaleza del derecho debe elaborarse en función de la verdadera naturaleza del derecho. A diferencia del derecho, la filosofía del derecho tiene que ser verdadera para ser buena.

Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.

To be radical about pornography used to mean that one favored less censorship; now it often means that one favors more. That political change reflects a shift in the dominant paradigm of pornography and its putative evils. Until quite recently, most people who believed pornography wrong thought that it offended against decency and propriety and was therefore obscene. That was certainly the view of the law. English judges first created the crime of obscene libel in 1727 on the basis that such expression tended to corrupt the morals of the King's subjects, a thought that inspired most subsequent legislation in the common‐law world. Sometimes the underlying concern really was paternalistic: pornography degrades and corrupts its producers and consumers; the law forces them to become better people. More often, however, it was just moralism of the familiar sorts: the view that a majority of a community is entitled to enforce its moral views on the rest, either because that is democratic or because that is just what it means to be a community. The obscenity paradigm thus had two features. First, it was illiberal: it ranked personal autonomy below realizing the good, enforcing the majority will, or embodying communitarian values. Second, it was gender neutral: to understand the nature of pornography did not require theorizing relations between men and women. On the obscenity paradigm, pornography was a matter of virtue versus vice, majorities versus minorities.

Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence depends on any thesis about gender. Yet some feminist scholars, including prominently Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence, though its relevance has been screened out by methodological errors that characterize what she calls ‘the analytical jurisprudential mind’. I argue that this is incorrect, by examining the relationship between gender and law, the relationship between sex and gender, and the place of sex in the legal concept of marriage. The methodological charges against ‘the analytical jurisprudential mind’ prove unfounded. I also suggest that hostility to analytical methods is likely to be damaging to feminist legal theory, and urge feminist scholars to look again at the resources of analytic legal philosophy.

This chapter argues that the role of a judge consists of obligations to apply the law, obligations to improve the law, and obligations to protect the law. It defends this view against a competing suggestion by Michael Moore, who claims that, when acting judicially, judges are always obligated to apply the law, and the law alone. I argue that this depends on an incorrect view of the relationship between social roles and moral obligations, and an unacceptably capacious view of what the law is. I conclude by asking whether there is nonetheless room to make a “conceptual choice” to see law as Moore thinks of it, or a reason to reform the concept of law along such lines. I reject both ideas. There are fewer “conceptual choices” in jurisprudence than some people think.

Oxford Studies in the Philosophy of Law is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The essays range widely over issues in general jurisprudence, the philosophical foundations of specific areas of law, the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory. OSPL will be essential reading for philosophers, academic lawyers, political scientists, and historians of law who wish to keep up with the latest developments in this flourishing field.

This paper addresses the relationship between law and coercive force. It defends, against Frederick Schauer's contrary claims, the following propositions: The force of law consists in three things, not one: the imposition of duties, the use of coercion, and the exercise of social power. These are different and distinct. Even if coercion is not part of the concept of law, coercion is connected to law many important ways, and these are amply recognized in contemporary analytic jurisprudence. We cannot determine how important coercion is to the efficacy of law until we know what counts as coercive force. The question of what counts as coercion is not a matter for generalization or stipulation. It requires an explanation of the concept of coercion.