Research Guides : Jurisprudence and Philosophy of Law: SSRN

SSRN - Author Page

Brian Leiter's Scholarly Papers Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy & Human Values University of Chicago
John Finnis's Scholarly Papers Biolchini Family Professor of Law University of Notre Dame The Law School
Lawrence B. Solum's Scholarly Papers
Martha Nussbaum's Scholarly Papers
Rob Atkinson's Scholarly Papers Professor Florida State University College of Law

SSRN - Subject Matter Journals

SSRN or the Social Science Research Network posts both working and accepted papers of scholars from around the world. Their electronic paper collection has over 500,000 downloadable full text articles. On this page are just a few examples of SSRN articles.

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SSRN - Legal Realism

American Legal Realism and Practical Guidance H.L.A. Hart’s well-known rejection of American Legal Realism turned in part on the idea that Realism lacked the resources to provide the sort of guidance that we might reasonably seek from a theory of law. Although Hart's criticisms were widely regarded as devastating, in recent years American Legal Realism has undergone something of a renaissance. The principal architect of that renaissance is Brian Leiter, who has re-established Realism as an important and even indispensable approach to jurisprudence. In this chapter, our aim is to show how, despite its considerable attractions, Leiter’s brand of Legal Realism appears to be in much the same boat as its predecessors. That is, it cannot fulfill an important practical task for which we reasonably seek to develop a theory of law: providing an account of law as a potential source of guidance. Central to our discussion is the idea that there are diverse interests we might have in a theory of law. For example, one reason to develop an account of law is roughly descriptive. That is, we might seek to explain the nature of legal practices as such from an outsider's perspective and to illuminate how and why law functions as it does. We might even hope that such an account could enable us to predict judgments about cases. A different reason for developing a theory of law might be characterized as prescriptive. Among prescriptive approaches, one view of the function of legal theorizing is to offer guidance to those concerned to adhere to the law. A prescriptive account of that sort would, for example, help a judge decide what ruling the law requires in a given case. While Legal Realism may adequately serve our descriptive interests, it is far less clear that it adequately addresses a reasonable practical interest we can have for a theory of law, i.e., providing guidance for those interested in adhering to the law. We then consider whether this shortcoming is best understood as a serious internal flaw to Legal Realism or whether instead it shows something more general about the limitations of any unified approach to jurisprudence. We suggest the latter.
Legal Realism and Legal Doctrine In this contribution to the symposium on "The New Doctrinalism," I argue that American Legal Realists did not reject doctrine, because the Realists did not reject the idea that judges decide cases in accordance with normative standards of some kind: “doctrine” after all is just a normative standard about what should be done, but one formulated and made explicit by a statute or a court or a treatise. A judge who decides cases based on the norm “this breach of contract is efficient” still decides based on a normative standard, even if it is not one that the law necessarily endorses. But the non-legal normative standards of yesterday can become the legally binding norms of tomorrow. What the Legal Realists taught us is that too often the doctrine that courts invoke is not really the normative standard upon which they really rely. And it was central to Legal Realism to reform the law to make the actual doctrine cited by courts and treatise writers correspond to the actual normative standards upon which judges rely. Doctrine remains so important today, as many of the contributions to this symposium show, precisely because the realist law reform movement was successful in so many arenas.

SSRN - Legal Positivism

The Justification of Positive Law in Plato This article argues that Platonic legal philosophy views positive law as justified only because of the problems inherent in human nature, and not, contra natural law thinkers, because of its rationality.
The Third Pillar of Jurisprudence: Social Legal Theory Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.

SSRN - Natural Law

Introduction to Traditional and Modern Natural Law Theories The ‘Law’ like language and culture is changing variable and its changes are reactionary to social, associational, economic and political changes. Due to its vividness and variable content, ‘Law’ remained as one of the difficult concepts to define, yet river of juristic ink has flowed in an endeavour to provide a universally acceptable definition of Law. In search of comprehensive answer to the questions relating to meaning, source, subject, aspect and force etc. of law, many jurists since time immemorial labouring hard, in different dimensions, these multidimensional efforts paved way to many theories. Such theories may be classified into (i) Natural, (ii) Analytical, (iii) Historical, (iv) Philosophical (v) Sociological and (vi) American realism. In this Module our focus will be on Natural Law theories. This paper is set out to serve three purposes (i) to make reader familiar with the meaning of natural law, (ii) to study (briefly) various theories on natural law starting from ancient Greek, so that reader can appreciate the shift of natural law from ‘dictate of God’ to dictate of ‘right reason’, and (iii) to appraise the revival of natural law in 19th and 20th century along with infusion of new dimensions by Brian Bix in the study of both natural law and legal positivism. Thus, first part of the module deal with meaning of natural law, second part deals with various theories, and the last part starts with revival of natural law and ends with Brian Bix’s views on natural law.
Maimonides, Nature and Natural Law Did Maimonides accept or reject the concept of Natural Law? While initial inquiries asked whether Maimonides accepted or rejected the doctrine as a whole, later studies focussed on whether Maimonidean legal theory could go along with the Natural Law doctrine or not. The aim of my paper is to go a step further and to argue that while Maimonides had a lively interest in the relationship between nature and law, he was not dragged into the Natural Law discourse. In other words, although he didn't overlook the nature-law question in his jurisprudential scheme, he didn't see it as integral to his legal theory
Natural Law: The Perennial Phoenix Saint Thomas Aquinas harmonized four ostensibly competing views of law: positive (governmental enactment); natural (discovered by reason); Divine (revealed in scripture); and Eternal (God, Logos, or the ultimate nature of reality). He postulated that this was an ascending order - thus enacted law which was intrinsically unjust was not law at all. Both our own Martin Luther King and Thomas Jefferson used this understanding to indicate that unjust law could be disobeyed, and in fact, was not law. Plato, father of Western Philosophy, reinterpreted a pantheon of Greek gods and goddesses as instead, a system of eternal values known as Forms or Ideas. Thus God became the Good, and the other personalities were described as values, such as Truth and Beauty. For thousands of years, in Western Jurisprudence, a definition of Law has been attempted. These definitions have ranged from morality to anarchy. They have speculated law should be economic-based to the other pole that law should be liberty-based. As of this writing much of the world believes, as did Aquinas that law is God-based. It is queried, is it possible that all of these views have some correct quality in them? That is the thesis of this paper: that law is a timeless balancing of certain legitimate and immutable values and approaches; that these approaches go from the mundane command approach, to the transcendental spiritual approach. Law includes dignity and truth values, but also includes - and has room for - spiritual values. The approach is based on the methodology of Aquinas and Plato, but has greater specificity, which is synchrony with case law. The article traces the great jurisprudential debates and the possibility that there is a timeless approach to law.
The Status of Classical Natural Law: Plato and the Parochialism of Modern Theory The concept of modernity has long been central to legal theory. It is an intrinsically temporal concept, expressly or implicitly defined in contrast to pre-modernity. Legal theorists sometimes draw comparisons between, on the one hand, various post-Renaissance positivist, liberal, realist or critical theories, and, on the other hand, the classical natural law or justice theories of antiquity or the middle ages, including such figures as Aristotle, Cicero, Augustine or Aquinas. Many theorists, however, while acknowledging superficial differences among the various classical theories, fail to appreciate the variety and complexity of pre-modern thought. Unduly simplifying pre-modern understandings of law, they end up drawing false distinctions between modern and pre-modern legal theory. The pre-modern example considered in this article is Plato. Unlike scholars within the Humanities, who have continued to revise their approaches to pre-modern thought (often reflecting changes in ethical or political thought today), legal theorists, including many who claim to challenge much of traditional positivism, have scarcely moved beyond traditional positivists' ahistorical and reductionist views.
Towards a Natural Law Foundationalist Theory of Universal Human Rights The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for a version of Foundationalism called Natural Law Foundationalism, which has often been overlooked in the contemporary literature. It argues that Natural Law Foundationalism is a promising view because it is capable of confronting the ethnocentricity problem more effectively than other versions of Foundationalism. It also argues that the view can deliver on its promise because its main tenets have sufficient philosophical defensibility.

SSRN

Law, Morality and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry The part of legal philosophy that is standardly known as general jurisprudence is often glossed as the study of “the nature of law”. General jurisprudence isn’t about the nature of any particular legal system: it is about the nature of law in general. While this description conveys the gist of general jurisprudence, taken literally it is deeply misleading. For when one looks at the leading works in general jurisprudence one finds a broad range of claims, not only metaphysical ones about the nature of law, but also including conceptual (e.g., about the concept LAW), semantic (e.g., about the meaning of legal statements), and epistemological ones (e.g., about our knowledge of the law). This paper proposes a different account of general jurisprudence, one which seeks to explain the philosophical unity of the field given the diversity of its questions. The account situates general jurisprudence within the broader philosophical project of metanormative inquiry and shows how general jurisprudence is parallel to another well-known sub-part of that project — a core subset of metaethics. The paper argues that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fit into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit into reality. In turn, general jurisprudence is the part of metalegal inquiry that focuses on universal legal thought and talk. The paper concludes by illustrating how this framework for characterizing general jurisprudence makes sense of both actual and possible positions within the field and provides directions for future research.
Why General Jurisprudence Is Interesting In a recent article entitled, ‘Is General Jurisprudence Interesting?’, David Enoch answers his own question resoundingly in the negative. This article critically examines the character of Enoch’s claim, the presuppositions it rests on, and the way in which he seeks to establish it. Having argued that many of Enoch’s views in this regard hinge on a narrow and idiosyncratic understanding of the questions that general jurisprudence addresses, and of the relations between those questions and many other inquiries concerning the character of law, the article concludes by offering its author’s own vision of what makes general jurisprudence engaging, intriguing, and … well … interesting.
Zombie Jurisprudence This chapter argues that contrary to what most philosophers of law believe, the long-standing divide between analytic and critical philosophy can in fact be bridged, at least in some cases, and that much can be gained from a constructive dialog between these two schools. To demonstrate this claim, the chapter analyzes an emerging view within analytic philosophy of law, which reduces legal norms to their effects on the overall set of moral obligations, duties and permissions of agents ("Law as Morality"). The chapter does not critique Law as Morality directly, but instead argues that though this position is presented as a novel analytic insight – indeed, as a breakthrough in jurisprudence – it is animated to a large extent by ideas that are thoroughly discussed in Critical Legal Studies literature. This result should surprise critics and analytic philosophers alike, as the two camps disagree on almost every facet of their thinking, but agree that they are discrete groups, engaged in wholly different projects. The chapter draws on this example to defend the more general thesis that critics and analytic philosophers share more similarities than they acknowledge.