Triantafyllos Gkouvas

The question of whether coercion is a necessary or contingent feature of governance by law is a historically complex aspect of a venerable 'modalist' trend in jurisprudential thinking. The nature of the relation between law and coercion has been elaborated by means of a variety of modally qualified accounts, all converging in a more or less committing response to whether the language, concept or essence of law as a system of governance necessarily entails the coercive character of this system. This Element remodels in non-modal terms the way in which legal philosophers can meaningfully disagree about the coercive character of governance by law. On this alternative model, there can be no meaningful disagreement about whether law is coercive without prior agreement on the contours of a theory of how law is made.

The purpose of this paper is to defend the view that Kant has propounded an internalist theory of moral motivation. In particular, I shall argue that Kant’s espousal of internalism is evidenced by his claim that pure reason’s relation to the will is premised on a practical synthetic a priori proposition. What I aim to demonstrate is that Kant treated practical syntheticity as a pivotal concept for his account of what it means to be motivated by principles of pure reason. On my construal of Kant’s motivational theory, the relation between universalizable maxims and the moral interest to act upon them is necessary but non-tautological, since violations of duty are logically possible despite our having a moral reason to act. What prevents the latter argument from collapsing into a quasiexternalist account of moral motivation is that the motivational impact of law-like maxims is ultimately premised on a normative conception of ourselves as free agents.

This book advances a philosophical account of a substantive, albeit less elaborated, variant of jurisprudential disagreement about which kinds of non-legal facts determine the content and the normative force of the law. At the most abstract level legal philosophers disagree about the proper methodology of jurisprudence. Opinions are divided as to whether the proper method of philosophical inquiry about law consists in refining our description of what a legal practice is or, conversely, in justifying the practice of law from a normative vantage point. Further downstream, the bulk of jurisprudential controversy centres on the concept or the nature of law. Debates in this domain are usually cast in modal or essentialist terms such that the main question becomes whether legal validity can be attributed to norms promulgated by morally wicked governments or whether by its essence law serves a moral aim. Without suppressing the relevance of formal disputes about the methodology of jurisprudence or the nature of law, the content of the book focuses on what makes the grounds of facts about legal content and legal normativity philosophically contestable. For instance, two judges may converge in their interpretation of a particular statute or precedent but disagree about ‘the content of the law’ because they diverge in their beliefs about whether statutes and precedents are the sole determinants of legal content. Perhaps less commonly, disagreement may also erupt about the ‘force of the law’, namely, about what makes legal authority or a particular institutional arrangement practically compelling. Philosophers of both a positivist and anti-positivist persuasion commonly refer to instances of this type of dispute about the grounding of a class of facts as ‘theoretical disagreements’. Theoretical disagreement about the content and the force of the law is used as a term of art to be contrasted with empirical and doctrinal conceptions of legal disagreement commonly encountered in the context of legal advocacy, administrative and judicial practice about whether a legal rule applies to a particular circumstance. Whereas the latter type of disagreement is resolvable by consulting the appropriate legal materials (statutes, court rulings, executive decrees etc), the former type of disagreement invites us to inquire into what grounds the fact that a legal rule or principle is applicable in a given context or, respectively, what makes it the case that this rule or principle has a binding effect on its addressees.

Legality is a monograph scoring distinct contributions across the board of jurisprudential discourse. Among the most prominent arguments marshalled in this book is an impressively robust defence of reductionism about legal norms. The concept of a plan is invoked in the service of delivering a formidable task, that of disembarrassing the legal philosopher of the quest for what makes legal norms metaphysically distinct. The answer is simple, yet relies on an intricate chain of arguments: talk of legal norms is just a linguistic convention for referring to a metaphysically more versatile kind of object, namely, plans. This essay aims to record and evaluate the metaphysical implications of this reductionist turn. More precisely, it shall locate two defensible, yet sharply divergent, variants of plan positivism which Shapiro’s dense analysis appears to conflate at the expense of his theory’s explanatory ambitions. The concern this essay intends to raise regards an...

El propósito de este trabajo es defender la opinión que Kant ha propuesto sobre la teoría internalista de la motivación moral. En particular, argumentaré que la adopción de Kant de internalismo se evidencia en su afirmación de que la relación de la razón pura de la voluntad se basa en una práctica una proposición sintética a priori. Lo que se pretende demostrar es que Kant trata la sinteticidad práctica como un concepto fundamental para su relato de lo que significa ser motivados por los principios de la razón pura. En mi conceptualización de la teoría motivacional de Kant, la relación entre las máximas universalizables y el interés moral de actuar sobre ellos es necesaria pero no tautológica, ya que violaciones de los derechos son lógicamente posibles a pesar de que tengamos una razón moral de actuar. Lo que impide que este último argumento colapse en una cuenta casi externalista de la motivación moral es que el impacto de motivación de las máximas como la ley, es en última instancia, la premisa de una concepción normativa de nosotros mismos como agentes libres.

Even though the acknowledgment of the possibility of disagreement about the grounds of legal facts tends to acquire the shell of a mainstream view, the available regimentations of grounding disagreements in law limit their scope to two mutually exclusive jurisprudential variants. Ronald Dworkin’s original conception of theoretical disagreement as being about the responsibilities of government vis-à-vis its citizens is distinctly evaluative thereby excluding legal positivists from meaningful participation. An alternative descriptive variant has been recently defended by Scott Shapiro which replicates, nonetheless, the same exclusive function. The paper addresses this problem by locating its roots in the positivist elaboration of the idea that legal statements are inherently perspectival. After critically rejecting the perspectival model it proposes an alternative regimentation of legal statements as carrying metaphysical information about the constitution of legal content and explains how this non-perspectival model makes grounding disagreements in law maximally inclusive and meaningful.

In the second section’s final chapter, Triantafyllos Gkouvas discusses the function of interpretative canons in the determination of the law’s content. The argument begins with an overview of the controversies raised by the judicial application of interpretative canons and describes the main distinctions made by jurists in the context of the assessment of their legal effects. Subsequently, Gkouvas explores epistemic and normative approaches to the question of whether interpretive canons have the power to modify the legal effects of ordinary laws or constitutional provisions. He argues that, despite their differences, these approaches take a similarly deflationary position on the role of canons in legal reasoning. In response to this deflationism about the role of interpretative canons, Gkouvas claims that the interaction between interpretive canons and positive law is not in itself a distinct type of metaphysical relation but supervenes, nonetheless, on some metaphysically impactful properties of the related entities. In his conclusion, Gkouvas specifies this impact in mereological terms such that the modification of the legal effect of a legal provision by a canon amounts to a re-composition of the legal content of that provision through the incorporation of the legal content of the modifying canon into the legal content of the thereby modified provision.

There is a plethora of occasions where we feel the intuitive urge to say that the fact that one is a participant in some sort of conventional or institutional practice is a reason to abide by its rules because that is just what it is to be a practice participant. This form of prescription-cum-justification argument is a fusion of an appeal to ordinary practical reasons (the prescriptive part) and an appeal to what is known as a constitutive explanation (the justificatory part) of such reasons. The latter explanation is constitutive in the sense that the reason-for complement, namely, the activity of abiding by the rules of is a partial description of what it is to be a practice participant. The author of this essay argues that the use of constitutive arguments for explaining the normativity of conventional requirements is one step ahead of what needs to be accounted for in the first place which is the following: is the normative force of practice-based requirements a matter of practical reasons? The essay’s timid proposal will be to consider the possibility that the normativity of social practices is more akin to the normativity of formal rationality than to the normativity of practical reasons.

Appeals to metaphysics have lately come to ascendancy in analytic legal philosophy. Over the last 20 years or so, a new discourse framework has emerged in analytic legal metaphysics that focusses on the explanatory question of how law is made. By any measure the most influential refinement of this question is to be found in Mark Greenberg's seminal 2004 article How Facts Make Law. This essay tries to exert some pressure on this familiar question by posing the categorial question of what type of entities different theories of law take up as ontologically basic for their inquiry. The essay singles out four exemplary avenues for answering the categorial question. Introducing a categorial instead of explanatory lens is an overdue step in the process of updating the metaphysical toolbox of contemporary analytic theories of law. The categorial question of what kind of entity law is ismeant to complement the explanatory question of how law is made in a way that makes disagreements about the metaphysical-explanatory demands of theories of law more tractable or amenable to principled adjudication.

The moral, legal, and political assessment and categorization of the provision of a social minimum is controversial because it borders on being an essentially contested concept from at least four distinct perspectives through which political economic activity is evaluated: the market viewpoint (commutative perspective), the labor and production viewpoint (contributive perspective), the public institution viewpoint (distributive perspective), and the unproductive expenditure or complementary consumption viewpoint (donative perspective). This paper will focus on the viewpoint of public institutions responsible for determining what constitutes a socially just distribution of a social minimum. To accomplish this, it will outline a conceptual framework in which the distribution of a social minimum can be meaningfully debated in conceptually transparent terms. The hypothesis behind building this platform is that understanding the social minimum as a distribuendum should be based on an understanding of distributable goods as a valuable kind of resource, whether material or immaterial. Accordingly, the paper will outline the conceptual variations of a resource-oriented understanding of the social minimum as a requirement of distributive justice.