• Methodology of Legal Theory
    with Wilfrid J. Waluchow and Michael Giudice
    Ashgate. 2010.
    The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dickson's Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Hart's 'Postscript' to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but also propose a …Read more
  •  16
    What is the value of fictions, metaphors, figures and scenarios in adjudication? This book develops three models to help answer that question: inquiry, artefacts and imagination. Legal language, it is argued, contains artefacts – forms that signal their own artifice and call upon us to do things with them. To imagine, in turn, is to enter a distinctive epistemic frame where we temporarily suspend certain epistemic norms and commitments and participate actively along a spectrum of affective, sens…Read more
  •  2
    This paper offers an example of what may be called ‘an aesthetic history of legal and political thought’. Such a task engages in theorising historically the features of aesthetic traditions that enable and further normative inquiry, i.e. an exploration of the norms and values that might contribute to the good life and the common good. The three features offered in this paper as useful to identifying such aesthetic traditions are communality and interactivity, experimentalism, and exemplarity. Th…Read more
  • Book Review (review)
    Criminal Law and Philosophy 3 (2): 209-212. 2009.
  •  38
    This paper discusses a much-neglected aspect of Neil MacCormick's theory of legal reasoning, namely what he calls ‘consequential reasoning’. For MacCormick, consequential reasoning is both an omnipresent feature of legal reasoning in England and Scotland, as well as being a valuable one. MacCormick articulates the value of consequential reasoning by seeing it as contributing to the forward-looking requirement of formal justice, ie, of deciding the instant case on grounds that one is willing to a…Read more
  •  63
    This paper considers whether, and if so how, the modelling of joint action in social philosophy – principally in the work of Margaret Gilbert and Michael Bratman – might assist in understanding and applying the concept of concerted practices in European competition law. More specifically, the paper focuses on a well-known difficulty in the application of that concept, namely, distinguishing between concerted practice and rational or intelligent adaptation in oligopolistic markets. The paper argu…Read more
  •  53
    Creativity and Imagination in the Practice of Philosophy
    Swiss Philosophical Preprints. 2008.
    This paper argues that the exercise of the imagination requires us 1) to attempt to describe features of a certain practice that appear, at first blush, natural and obvious; 2) to understand that that which appears natural and obvious could be otherwise; and 3) to be open to the introduction of changes to that which appears natural and obvious. Imagination, in this sense, is quite different to creativity. The latter works on the basis of the introduction of variations to settled phenomena. This …Read more
  •  22
    What Does History Matter to Legal Epistemology?
    Journal of the Philosophy of History 5 (3): 383-405. 2011.
    This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions, but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the a…Read more
  • Legal Fictions and Legal Change in the Common Law Tradition
    In William Twining & Maksymilian Del Mar (eds.), Legal Fictions in Theory and Practice, Springer Verlag. 2015.
  •  1
    New Waves in Philosophy of Law (edited book)
    Palgrave-Macmillan. 2011.
    This book provides a collection of 11 cutting-edge essays by leading young scholars, challenging long-held assumptions and offering new research paradigms in Philosophy of Law, in five parts: 1) methodology/metatheory; 2) reasoning/evaluating; 3) values/the moral life; 4) institutions/the social life; and 5) the global/international dimension.
  •  35
    Legal Fictions in Theory and Practice (edited book)
    with William Twining
    Springer Verlag. 2015.
    This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed fundament…Read more
  •  15
    Legal Norms and Normativity
    Oxford Journal of Legal Studies 27 (2): 355-372. 2007.
  •  1
    Book Review (review)
    Criminal Law and Philosophy 3 (2): 209-212. 2009.
  •  38
    Marmor’s Social Conventions: The Limits of Practical Reason
    Philosophy of the Social Sciences 41 (3): 420-445. 2011.
    This essay argues that the practical reason approach to the study of social conventions (and social normativity more generally) fails to adequately account for the fluency of social action in environments that we experience as familiar. The practical reason approach, articulated most recently in Andrei Marmor’s Social Conventions: From Language to Law (2009) does help us, though not wholly adequately, to understand how we tend to react to, and experience, unfamiliar situations or unfamiliar beha…Read more
  •  23
    Introduction (Symposium on the Human Right to Subsistence)
    with Rowan Cruft and Maksymilian Del Mar
    Journal of Applied Philosophy 30 (1): 53-56. 2013.