Veronica Rodriguez-Blanco

The recognition of the particular in law is crucial, and any good lawyer or judge should be able to correctly establish the potential instantiation of the abstract into the particular. This is the arduous task of the so-called ‘determination’. In his influential new book, Reciprocal Freedom, Ernest Weinrib elucidates the dynamic relationship of transforming the abstract into a determination. As is usual in his writings, Weinrib shows a perceptive, nuanced, and insightful position on the nature of private law. Nevertheless, I maintain that determination can only occur through the application of practical reason—a deliberative process that aligns with the valuable and the good, rather than solely focussing on the right and the dutiful. In grappling with Weinrib’s masterful work, I thus argue that the fundamental premise of his view is ‘the separation of rights and values’, and I aim to debunk this presupposition.

In “Practical Reason’s Foundations” John Finnis expands and refines his view on the relationship between objective goods and practical reason. In this paper Finnis rejects the Humean conception which denies the possibility of practical reason, or at least presents an emaciated version of it. For Hume, desires just happen to us and there is no interaction between desires and beliefs. The Humean and neo-Humean positions, Finnis rightly tells us, have a powerful influence on how we understand practical reason, including our interpretation of Aristotle’s conception of practical reason. I will call this the “bifurcation” thesis. Following Finnis’s conception of practical reason and his rejection of a bifurcation between reasons and desires, and between intellectual virtues and virtues of character, I advance an Aristotelian-inspired model of deliberation and practical reason that is narrow and immersed. It recognizes the difficulty of understanding the Aristotelian analogies of practical reason as if it were both a craft and theoretical reasoning to illuminate and demonstrate the existence of practical reason. However, I also argue that this narrow or immersed model is in continuity with a deliberative-aspirational perspective that we are able to inhabit. We explain how reflection without losing immersion is possible and explain how we can move in the direction of practical reason that guides actions and makes possible the realization of objective goods in our lives.

Corrective justice theorists tell us that to resort to features or characteristics alien to the internal structure of corrective justice and the law of negligence undermines the intelligibility of the phenomena, i.e., the interaction between the plaintiff and the defendant. Like friendship or love which can only be understood by reasons of love or friendship itself, the doctrinal aspects of negligence law can only be correctly understood and become intelligible within the normativity, internal logic and reasons of corrective justice, i.e., equality between persons, autonomy. Furthermore, law and juridical thinking are a matter of rights and duties. By contrast, ethical deliberation and practical reason are a matter of virtuous action, values and what is good. The first underlying presupposition will be called the “internal logic” thesis. The latter will be called the “the separation of rights and values” thesis. I aim to debunk both theses and argue, first, that we need to grasp the values embedded in the law in our “doing” and in our engagement with the law. This does not mean that these values are external and therefore that we make the internal logic of negligence law unintelligible. I will show that from the forward-looking perspective of the citizen there is no stark separation of rights and values. When engaging in decisions judges attribute liability grounded on the plaintiff’s rights and defendant’s duties, they take the backward-looking standpoint. However, in negligence law, judges advance values that play the role of proleptic thoughts, i.e., descriptions and re-descriptions of values, in the practical reasoning of the citizens. We can understand both functions or roles because we can understand that there is no stark separation of rights/duties and values. Finally, the paper considers whether my position sheds light on the role of moral luck in negligence law.

This book is the first collection of essays on Bernard Williams' moral and political philosophy to shed light on the nature of law, and key legal concepts. By the time of his death in 2003, Williams was widely regarded as the most important moral philosopher of his generation. Surprisingly, his work is still largely under-discussed in legal theory. This book aims to fill this gap with brand new discussions from scholars both from law and philosophy. The first part of the book focuses on Williams' work on responsibility and regret and its implications for law. Drawing from Ancient Greek authors, Williams maintained that luck might play a key role in our practices of responsibility and that some dimensions of responsibility are tied to the notion of having a character. What we do – intentionally or not – might affect our understanding of ourselves and of our place in the world. How do those ideas help us in making sense of legal responsibility? How broader concerns about our practices of responsibility impact the law? Those are some of the questions addressed by the authors in this part. The second part looks at how Williams' understanding of philosophy can shape the way we do jurisprudence. Williams' work on the methodology of philosophy combines resources from analytical philosophy, continental authors, history, and literature. He understood philosophy as a humanistic discipline. The authors in the second part of the book draw from Williams' work, notably his innovative take on the genealogical method, to discuss how we could practice legal philosophy in this same spirit.

What happens in the agent that enables her to comply with the legal command or directive? When we perform an action because we are complying with the legal command or directive, are we still active, self-governed autonomous agents? In what sense are we still autonomous agents? The task of this study is to explain what legal authority is and the premise of the study is that this question can only be answered through understanding of how legal authority operates upon the agent: if we recognize that legal commands or directives intervene upon, affect and change the agent’s practical reasoning, then we need to understand and explain how this happens.

I will advance two criticisms and one comment to Hershovitz's Law is a Moral Practice. First, I will argue that the idea that law is a moral practice because it rearranges our moral relationships tends to be circular, unless a conception of practical reason connected to morality and human practices are advanced. Second, I will problematise the predominance of a backward-looking legal reasoning that focuses on rights and wrongs only. Finally, I will explore Bernard Williams diagnosis regarding ‘the problem of the morality system’ and scrutinise how his reflections might have implications for the key premises advanced by Hershovitz. I demonstrate that any explanation of law as moral practice needs to explain the role of our engagement with the law as the kind of creatures we are, i.e. rational creatures. This means that any account of the relationship between law and morality that does not explain the character of practical reason and how it engages with the law is deficient and unsatisfactory. Hershovitz is eager to show that law cannot be neutral and he tells us that it is instead a moral practice that deals with rights and wrongs in a robust manner. However, his account cannot explain to us how the judge and legislator make this possible through the law. Therefore, within this conception, there is no mediation or bridge between law and moral practice qua rational (and not qua practice). Hershovitz seems to discard the ancient philosophical platitude, namely that we cannot understand and engage with right and wrong, good or bad, except through the mediation of reason.

Dworkin advances the view that judges decide legal cases according to constructive interpretation. The aim of constructive interpretation is to justify the coercion of the State. A trivial implication of this view is that officials and citizens will comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. But then, it seems that constructive interpretation cannot really provide any guidance since officials and citizens have been asked toacceptthe interpretation of the law that has been put forward by the judges since arguably, it is the best possible interpretation of what the law is in this particular case. However, why they ought to do so?I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action that believes that action is raw behavioural data and that therefore we need to ‘impose meaning’, ‘value’ or ‘purpose’ on them. I will defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.

This collection of new essays explores in depth how and why we act when we follow practical standards, particularly in connection with the authority of legal texts and lawmakers. The essays focus on the interplay of intentions and practical reasons, engaging incisive arguments to demonstrate both the close connection between them, and the inadequacy of accounts that downplay this important link. Their wide-ranging discussion includes topics such as legal interpretation, the paradox of intention, the relation between moral and legal obligation, and legal realism. The volume will appeal to scholars and students of legal philosophy, moral philosophy, law, social science, cognitive psychology, and philosophy of action

Raymond Geuss asserts that there are fragmented views on what human rights are and that there is no unifying principle underlying such notion. I think that this view has its merits. It conveys the particularity of our perspectives, attitudes, desires and selfunderstandings. It rejects abstractness and is committed to a thick, perspectivist, historical understanding of personhood. To understand who we are, is to understand how we arrive at being who we are. By contrast, the notion of human rights deploys abstractness, unification of agency, necessity and a thin view of personhood. In this paper, I attempt to bring into focus these two aspects of the notion of human rights. I will first analyse the genealogical method advocated by Geuss and argue that it has the merit of elucidating our historical contingencies; however, it is argued that any view in favour of the genealogical method relies on the idea that evaluative or normative concepts cannot be defined in terms of a common denominator. We reconstruct the Aristotelian idea of ‘focal meaning’ as core-resemblance and show that there is a unifying concept of human rights. We conclude that the perspectivist spirit of genealogy is not far from the Aristotelian tradition. Aristotle’s inquiry into a concept that could grasp different perspectives and contingencies as opposed to a Platonic understanding of abstract and universal forms shows that genealogical worries are germane to the tradition.

Can Hart's non-cognitivism be reconciled with his rejection of the predictive and sanction-based explanations of law? This paper analyses Hart's notion of the internal point of view and focuses on the notion of acceptance of a rule along the lines of a non-cognitivist understanding of intentional actions. It is argued that a non-cognitivist analysis of acceptance of rules is incomplete and parasitic on a more basic or primary model of acceptance that does not involve mental states. This basic or primary model of acceptance explains actions in terms of other actions and in terms of reasons for actions that are both presented as good-making characteristics and transparent to the agent. If Hart's internal point of view is able to work as the key argument to reject predictive and sanction-based explanations of law, it needs to make the outward approach of intentional action basic or primary rather than rely on an inward approach such as the one advanced by non-cognitivism

In the first part of this paper, I discuss the different kinds of objectivity; general and legal objectivity more specifically. In the second part, I endeavour to explain the two main views that have been advanced to answer four core questions on legal objectivity. The first is whether moral and legal values are objective. Second, what is the nature of the relationship between legal and moral values? The third is whether, due to the specific nature of law, we should consider a domainspecific conception of objectivity for legal values. The fourth concerns whether there is a correspondence between legal values and legal facts. What is the explanation of the platitudes about the nature of law such as that law is reasongiving, normative or authoritative in character? In other words, do legal facts have a place in our 'disenchanted' or naturalistic (in the scientific sense) understanding of the world. In the final section of this paper, I evaluate naturalism and nonnaturalism in law and consider the future of the debate and its relevance for understanding the connection between law, morality and legal normativity.

This review article examines David Enoch’s recent book Taking Morality Seriously and focuses on ‘the deliberative indispensability of irreducibly normative truths’ which is a central argument of the book. I will show that this important and original argument as it stands fails. I will also argue that if Enoch had embraced all the consequences of his argument, then he would have opened up a more promising line of argument via which to defend the robust realism of normative truths. I will, therefore, attempt to defend a modified version of robust realism of normative truths and, in so doing, I will show how all the implications of Enoch’s insight can fully be embraced. I will finally demonstrate how this modified version illuminates some Dworkinian insights on the nature of law, but also undermines Dworkin’s theory of constructive interpretation

Judges and lawyers believe that international law, customary law, and legal systems such as the Third Reich or apartheid law in South Africa are law. But how do we explain the fact that there is one concept of law when there are different conceptions of law with a variety of different features? Finnis, inspired by the Aristotelian notion of central case, adumbrates the idea that the concept of law might be unified by a primary concept which is the concept of “law as practical reason”; that is, law conceived from an ethical perspective. He advances two arguments to defend his methodology: the conceptual and the functional. Contra Finnis, the paper shows that neither the conceptual nor the functional argument can successfully support the view that “law as practical reason” is the central case of the concept of law. The study clarifies the Aristotelian notion of central case and illustrates the mistaken application of this notion to the concept of law. However, we also argue that Finnis's insight–the idea that all the different conceptions of law might be unified for the purposes of theoretical research–is fundamental and appealing. This paper aims to reconstruct Finnis's insight through the model of core resemblance. The result is that the different conceptions of law can be unified by resemblance to the concept of “law as practical reason,” though there is no identity among the different conceptions of law

Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modifications to Bratman’s own explanation. Bratman describes his own theory as a modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the differences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application.

Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ‘intention’ into a cognizable object of legal science while simultaneously providing an explanation of the legal ‘ought’. The methodological strategy is the ‘inversion thesis’ which establishes that legal norms enable us to objectively identify and determine the ‘will’ or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ‘objectifies’ the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ‘will’, intentional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self-evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good-making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ‘ought’ and therefore the ‘will’. Yet, surprisingly and contrary to Kelsen’s own notions, I will show that Kelsen’s ‘inversion thesis’ is parasitic on Aristotle–Anscombe’s ‘ought’.

Two methodological claims in Hart's TheConceptofLaw have produced perplexity: that it is a book on 1 and that it may also be regarded as an essay in 2 Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time

The received view on the nature of legal authority contains the idea that a sound account of legitimate authority will explain how a legal authority has a right to command and the addressee a duty to obey. The received view fails to explain, however, how legal authority truly operates upon human beings as rational creatures with specific psychological makeups. This book takes a bottom-up approach, beginning at the microscopic level of agency and practical reason and leading to the justificatory framework of authority. The book argues that an understanding of the nature of legal normativity involves an understanding of the nature and structure of practical reason in the context of the law, and advances the idea that legal authority and normativity are intertwined. This point can be summarised thus: if we are able to understand both how the agent exercises his or her practical reason under legal directives and commands and how the agent engages his or her practical reason by following legal rules grounded on reasons for actions as good-making characteristics, then we can fully grasp the nature of legal authority and legal normativity. Using the philosophies of action enshrined in the works of Elisabeth Anscombe, Aristotle and Thomas Aquinas, the study explains practical reason as diachronic future-directed intention in action and argues that this conception illuminates the structure of practical reason of the legal rules' addressees. The account is comprehensive and enables us to distinguish authoritative and normative legal rules in just and good legal systems from 'apparent' authoritative and normative legal rules of evil legal systems. At the heart of the book is the methodological view of a 'practical turn' to elucidate the nature of legal normativity and authority.