Independent of content

Legal Theory

Volumn 9, Issue 1, 2003, Pages 43-61

  Markwick, P ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 58849166958     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325203000028     Document Type: Article

References (32)

1. Kent Greenawalt, CONFLICTS OF LAW AND MORALITY 25 (New York, 1989).
2. Joseph Raz, THE AUTHORITY OF LAW 234 (Oxford, 1979).
3. This definition is arbitrary in that the paper's arguments would hold even if “legal reason” were allowed a wider extension (even if, for example, it were sufficient for a reason p to ö be legal that p is the fact that ö-ing has some or other legal status-mandated by law, falls under a valid legal rule, commanded by an Austinian sovereign, etc.).
4. For claims about content-independence, including its relevance to legal reasons in particular, see R.A. Duff, Inclusion and Exclusion, 51 CURRENT LEGAL PROBS. 247 (1998), and PUNISHMENT, COMMUNICATION, AND COMMUNITY 56-9 (New York, 2001); Leslie Green, THE AUTHORITY OF THE STATE 40-62, 225-6 (Oxford, 1988); H.L.A. Hart, ESSAYS ON BENTHAM (Oxford, 1982) ch. 10; Kenneth Einar Himma, Hart and the Practical Difference Thesis 6 LEGAL THEORY 26-7 (2000); Gerald J. Postema, Jurisprudence as Practical Philosophy, 4 LEGAL THEORY 349 4 (1998); Joseph Raz, THE MORALITY OF FREEDOM 35-7 (Oxford, 1986), and PRATICAL REASON AND NORMS 70 (Princeton, NJ, 1990); Frederick Schauer, PLAYING BY THE RULES 125 (Oxford, 1991), and Critical Notice, 24 CANADIAN J. PHIL. 499 (1994); Roger Shiner, NORM AND NATURE 52-3 (Oxford, 1992).
5. See, for example, Duff, Inclusion and Exclusion, For claims about content-independence, including its relevance to legal reasons in particular note 4, at 245-9, and PUNISHMENT, COMMUNICATION, AND COMMUNITY, For claims about content-independence, including its relevance to legal reasons in particular note 4, at 56-9; William A. Edmundson, THREE ANARCHICAL FALLACIES 12-13, 50, 52-3 (Cambridge, 1998); Green, For claims about content-independence, including its relevance to legal reasons in particular note 4, at 41-6, 112-14, 225-6; Hart, For claims about content-independence, including its relevance to legal reasons in particular note 4, at 18, 255-62; Andrei Marmor, Authorities and Persons, 1 LEGAL THEORY 345-9 (1995); Thomas May, On Raz and the Obligation to Obey the Law, 16 LAW & PHIL. 21, 25 (1997); Scott Shapiro, On Hart's Way Out, 4 LEGAL THEORY 492-3 (1998).
6. See, for example, Raz, THE MORALITY OF FREEDOM, Inclusion and Exclusion note 4, at 35-7.
7. See, for example, Green, THE MORALITY OF FREEDOM note 4, at 49, 56-7; and Raz, THEMORALITY OF FREEDOM, THE MORALITY OF FREEDOM note 4, 35.
8. Green, THEMORALITY OF FREEDOM note 4, at 226. Edmundson, THEMORALITY OF FREEDOM note 5, at 50, believes that the fact that there appears to be a content-independent reason to conform to the law's administrative prerogatives is an example of “doubts about the existence of a general duty to obey the law fail[ing] to carry over when the subject is the duty to comply with administrative prerogatives.”
9. Green, THEMORALITY OF FREEDOM note 4 note 4, at 56-7, 230. Harman uses the term, though without mentioning content-independence, in THE NATURE OF MORALITY (New York, 1977) ch. 13. Green refers to utilitarian reasons (though not using this term) while considering whether acting on contentindependent reasons will “indirectly produce conformity with content-dependent reasons of the ordinary sort”. It is possible that Green is attempting to answer this question without presupposing that it is true that a person has reason to ö if and because ö-ing would maximize utility.
10. See MODEL PENAL CODE §1.13(9) (material elements) and §2.02 (culpability elements).
11. Green, MODEL PENAL CODE note 4, at 225; compare Robert F. Schopp, JUSTIFICATION DEFENCES AND JUST CONVICTIONS 28 (Cambridge, 1998).
12. See, for example, Green, JUSTIFICATION DEFENCES AND JUST CONVICTIONS note 4, at 225 (using assault as an example), and Schauer, Critical Notice, JUSTIFICATION DEFENCES AND JUST CONVICTIONS note 4, at 499 (referring to agents taking “the norms of the legal system to be reasons for action… independent of the reasons… supplied by the intrinsic moral worth of the norm itself”).
13. Markwick, Law and Content-Independent Reasons, 4 OXFORD J. LEGAL STUD. 579-596 (2000).
14. Shapiro, Law and Content-Independent Reasons note 5, at 493.
15. Postema, The Normativity of Law, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 86 (R. Gavinson, ed., Oxford, 1987). Compare Green, Law and Content-Independent Reasons note 4, at 113, and Duff, Inclusion and Exclusion, Law and Content-Independent Reasons note 4, at 247.
16. Hart, The Normativity of Law note 4, at 254. Citing Hobbes, Green, The Normativity of Law note 4, at 40-1, 225, agrees; he says the reasons supplied by commands “function in a way independent of what they are commands to do”; the reason “seems to have nothing at all to do with the merits of the actions commanded.”
17. The reference to Hobbes appears at 253-4 in Hart, Citing Hobbes note 4.
18. Green, The reference to Hobbes appears note 4, at 225.
19. Green, The reference to Hobbes appears note 4, at 225.
20. Postema, The Normativity of Law The reference to Hobbes appears note 18, at 97.
21. Edmundson, The Normativity of Law The reference to Hobbes appears note 18 note 5, at 13. Compare Edmundson, The Normativity of Law The reference to Hobbes appears note 18 note 5, at 52, and Schauer, PLAYING BY THE RULES The Normativity of Law The reference to Hobbes appears note 18 note 4, at 125.
22. Edmundson, PLAYING BY THE RULES note 5, at 52, emphasis added.
23. Note that there are places at which Edmundson indicates that he is not referring to what agents (could) merely realize (see, for example, Edmundson, PLAYING BY THE RULES note 5 note 5, at 52).
24. Edmundson, Note that there are places at which Edmundson indicates that he is not referring to what agents note 5, at 52. Admittedly, Edmundson also refers to “the moral quality of the type of action the law… commands” (at 52, emphasis added).
25. See Marmor, Note that there are places at which Edmundson indicates that he is not referring to what agents note 5 note 5, at 345.
26. There is one possible exception; Green, Note that there are places at which Edmundson indicates that he is not referring to what agents note 5 note 4, at 51, mentions that the claim that content-independence is a matter of degree trades “on an unexplicated theory for individuating contents.”
27. For elaboration of this point, see Roderick Chisholm, Practical Reason and the Logic of Requirement, in PRACTICAL REASON (Stephan Korner, ed., Oxford, 1974).
28. Raz, PRACTICAL REASON AND NORMS, Practical Reason and the Logic of Requirement note 4, at 24. Compare PRACTICAL REASON AND NORMS at 28 and Postema, Jurisprudence as Practical Philosophy, Practical Reason and the Logic of Requirement note 4, at 346.
29. For present purposes we can ignore which exact type of conditional is at issue here. For Raz's precise view, see Raz, PRACTICAL REASON AND NORMS, PRACTICAL REASON AND NORMS note 4, at 23-5. For possible complications (should we prefer a relation of supervenience?), see Simon Blackburn, SPREADING THE WORD (Oxford, 1984) ch. 5.
30. Raz, PRACTICAL REASON AND NORMS, PRACTICAL REASON AND NORMS note 4, at 25.
31. Edmundson, PRACTICAL REASON AND NORMS note 5, at 12.
32. Schauer, Critical Notice, PRACTICAL REASON AND NORMS note 4, at 499.