•  153
    The Reason of the Law
    American Journal of Jurisprudence 48 (1): 83-106. 2003.
    Moral premises are required in sound reasoning to the conclusion that a community does or does not (more or less) attain the rule of law. Those moral premises include, for example, the principle that judges should act with comity toward executive agencies. A failure in that moral requirement of comity is a failure to attain the rule of law. Because the ideal of the rule of law necessarily has a moral content, there is a necessary connection between law and morality– albeit a modest connection th…Read more
  •  113
    Herbert Hart and the Semantic Sting: Timothy A.O. Endicott
    Legal Theory 4 (3): 283-300. 1998.
    Even to disagree, we need to understand each other. If I reject what you say without understanding you, we will only have the illusion of a disagreement. You will be asserting one thing and I will be denying another. Even to disagree, we need some agreement.
  •  103
    The Value of Vagueness
    In Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law, Oxford University Press, Usa. 2011.
    How can it be valuable to use vagueness in a normative text? The effect is to make a vague norm, and vagueness seems repugnant to the very idea of making a norm. It leaves conduct (to some extent) unregulated, when the very idea of making a norm is to regulate conduct. A vague norm leaves the persons for whom the norm is valid with no guide to their conduct in some cases - and the point of a norm is to guide conduct. A vague norm in a system of norms does not control the officers or officials re…Read more
  •  91
    Vagueness and Legal Theory: Timothy A.O. Endicott
    Legal Theory 3 (1): 37-63. 1997.
    The use of vague language in law has important implications for legal theory. Legal philosophers have occasionally grappled with those implications, but they have not come to grips with the characteristic phenomenon of vagueness: the sorites paradox. I discuss the paradox, and claim that it poses problems for some legal theorists. I propose that a good account of vagueness will have three consequences for legal theory: Theories that deny that vagueness in formulations of the law leads to discret…Read more
  •  90
    Law is Necessarily Vague
    Legal Theory 7 (1): 377--83. 2001.
    In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal theory may have to learn from (or contribute to) work on vagueness in philosop…Read more
  •  77
    Vagueness in Law
    Oxford University Press. 2000.
    Vagueness in law can lead to indeterminacies in legal rights and obligations. This book responds to the challenges that those indeterminacies pose to theories of law and adjudication.
  •  67
    'International meaning': Comity in fundamental rights adjudication
    International Journal of Refugee Studies 13 280-292. 2002.
    In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of fundamental rights from that of an…Read more
  •  66
    Are there any rules?
    The Journal of Ethics 5 (3): 199-219. 2001.
    Widespread, deep controversy as to the content of the law of a community is compatible with the view that the law is a system of rules. I defend that view through a critique of Ronald Dworkin's discussion of Riggs v. Palmer 22 N.E. 188. Dworkin raised an important challenge for jurisprudence: to account for the fact that legal rights and duties are frequently controversial. I offer an explanation of the possibility of deep disagreement about the application of social rules, which reconciles cont…Read more
  •  57
    Putting interpretation in its place
    Law and Philosophy 13 (4). 1994.
    What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation t…Read more
  •  57
    How to Speak the Truth
    American Journal of Jurisprudence 46 (1): 229-248. 2001.
    Argues that some important problems in the theory of legal interpretation can be resolved with three techniques that John Finnis used in Natural Law and Natural Rights to address a methodological problem in jurisprudence: (1) The analogy principle: The application of a word such as “friendship” or “law” is not based on a set of features shared by each instance, but is based on similarities of a variety of kinds, seen by the people who use the words as justifying the extension of the word. (2) Th…Read more
  •  51
    Morality and the Making of Law: Four Questions
    Jurisprudence 1 (2): 267-275. 2010.
    I address four questions that arise out of Nigel Simmonds's book, Law as a Moral Idea : Is politics a moral idea too? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? To each question I propose an answer that shares much with Simmonds's views, but diverges. Simmonds is right to call law a 'moral idea', and that implies a connection between law and a moral ideal; in my view, the connection is compatible with a necessary con…Read more
  •  37
    The impossibility of the rule of law
    Oxford Journal of Legal Studies 19 (1): 1-18. 1999.
    No community fully achieves the ideal of the rule of law. Puzzles about the content of the ideal seem to make it necessarily unattainable (and, therefore, an incoherent ideal). Legal systems necessarily contain vague laws. They typically allow for change in the law, they typically provide for unreviewable official decisions, and they never regulate every aspect of the life of a community. It may seem that the ideal can never be achieved because of these features of legal practice. But I ask what…Read more
  •  29
    Vagueness and Law
    In Giuseppina Ronzitti (ed.), Vagueness: A Guide, Springer Verlag. pp. 171--191. 2011.
    The author argues that vagueness in law is typically extravagant, in the sense that it is possible for two competent users of the language, who understand the facts of each case, to take such different views that there is not even any overlap between the cases that each disputant would identify as borderline. Extravagant vagueness is a necessary feature of legal systems. Some philosophers of law and philosophers of language claim that bivalence is a property of statements in the domains that con…Read more
  •  28
    What Human Rights Are There—if Any—and Why?
    Studies in Christian Ethics 23 (2): 172-181. 2010.
    Are there human rights to a good such as social welfare, which depends on circumstances, and on the needs of a putative right-holder? Is justice constituted by rights? Does it take belief in God to understand the grounds of human rights? The essay responds to Nicholas Wolterstorff’s answers to these questions
  •  19
    Habeas Corpus and Guantanamo Bay: A View From Abroad
    American Journal of Jurisprudence 54 (1): 1-40. 2009.
    The habeas corpus jurisdiction is a judicial authority to control state detention of any person, anywhere, when the judges can do so without breaching the duty of comity that they owe to other institutions of the state. In the leading United States Supreme Court decision, Johnson v. Eisentrager, 339 U.S. 763 (1950), the majority mistook the purpose of the writ, treating it as merely a protection for the rights of citizens. The purpose of habeas corpus is to uphold responsible government. The pro…Read more
  •  17
    The Subsidiarity of Law and the Obligation to Obey
    American Journal of Jurisprudence 50 (1): 233-248. 2005.
    Law is a morally valuable institution, because every community with a legal system has valuable institutional facilities to coordinate the life of the community in a way that is general and systematic. In every legal system, the value of those facilities yields a moral obligation to obey some laws. But the law’s role in guiding conduct is subsidiary to the responsibility to act with a principled attention to the good of persons, and human law by nature is arbitrary in its application in some cas…Read more
  •  16
    The Irony of Law
    In John Keown & Robert P. George (eds.), Reason, Morality, and Law: The Philosophy of John Finnis, Oxford University Press. pp. 327-345. 2013.
    John Finnis says that central cases of the concepts of social theory (such as the concept of law) fully instantiate certain characteristic values (which are instantiated in more-or-less watered-down ways in peripheral cases). Yet the instances of some such concepts (such as the concepts of slavery, of tyranny, and of murder) do not instantiate any value. I propose a solution to this puzzle: the central cases of such concepts focally instantiate certain ills. The central case of a concept essenti…Read more
  •  15
    Adjudication and the Law
    Oxford Journal of Legal Studies 27 (2): 311-326. 2007.
    It can be compatible with justice and the rule of law for a court to impose new legal liabilities retrospectively on a defendant. But judges do not need to distinguish between imposing a new liability, and giving effect to a liability that the defendant had at the time of the events in dispute. The distinction is to be drawn by asking which of the court's reasons for decision the institutions of the legal system had already committed the courts to act upon, before the time of decision. I explain…Read more
  •  15
    Interpretation, jurisdiction, and the authority of law
    American Philosophical Association Newsletter 6 14-19. 2007.
    People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz's compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing that law does not claim unlimited jurisdiction, and need not claim un…Read more
  •  14
    Authentic Interpretation
    Ratio Juris 33 (1): 6-23. 2020.
    I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the ear…Read more
  •  11
    What use has approved
    Ratio 33 (4): 220-231. 2020.
    Ratio, EarlyView.
  •  10
    Legal Theory 7 (4): 369-369. 2001.
    Preface to a Symposium on Vagueness and Law at Columbia University Law School on September 24 and 25, 1999. The purpose of the seminar was to provide an opportunity for philosophers of law, philosophers of language, and philosophers of logic to discuss problems about vagueness that are currently under debate in all three areas
  •  9
    Symposium: what aspects of justice should not be the law’s concern?
    with José Maria Sauca Cano
    Jurisprudence 1-1. forthcoming.
    We are delighted to present four articles that had their inception in a conference at Universidad Carlos III in Madrid in June 2016 on the question, ‘What aspects of justice should not be the law’s...
  •  7
    Human rights and the executive
    Jurisprudence 11 (4): 597-609. 2020.
    Where the law protects human rights, the executive branch of government does well if it complies with the law, and goes wrong if it does not comply. And then you may think that the paradigmatic fun...
  •  6
    The Logic of Freedom and Power
    In Samantha Besson & John Tasioulas (eds.), The Philosophy of International Law, Oxford University Press. pp. 245-259. 2010.
    A state is sovereign if it has complete power within a political community, and complete independence. It may seem that the idea of sovereignty is objectionable because of two moral principles, or incoherent because of a paradox. The paradox is that a sovereign state must be capable of binding itself and must also be incapable of binding itself. The moral principles are that no state can justly exercise complete power internally, or complete independence (since complete independence would imply …Read more
  •  3
    Vagueness in Law
    Oxford University Press UK. 2001.
    Vagueness in law leads to indeterminacies in legal rights and obligations in many cases. The book defends that claim and explains its implications for legal theory. Vague language is the book's focus, but vagueness is not merely a linguistic feature of law. Law is necessarily vague. That fact seems to threaten the coherence of the ideal of the rule of law. The book defends a new, coherent articulation of that ideal.
  •  2
    Vagueness in Law
    Oxford University Press. 2000.
    Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. But the author also argues that vagueness is a feature of law, and not merely of legal lang…Read more
  •  1
    What aspects of justice should not be the law’s concern?
    with José Maria Sauca Cano
    Jurisprudence 11 (3): 416-416. 2020.
  • The infant in the snow
    In J. W. Harris, Timothy Andrew Orville Endicott, Joshua Getzler & Edwin Peel (eds.), Properties of Law: Essays in Honour of Jim Harris, Oxford University Press. 2006.
    Suppose that you are wandering across the tundra, and you find an infant, all alone, in the snow. She is incapable of discourse, and yet she has the same human rights as anyone who is capable of discourse. Those rights do not depend on the practices or conventions of your people, or hers. Human discourse and human conventions play no role in human rights. I elaborate these claims through a critique of J.W. Harris’s groundbreaking analytical account of human rights. I conclude that some welfare r…Read more