Jurisprudence as practical philosophy

Legal Theory

Volumn 4, Issue 3, 1998, Pages 329-357

  Postema, Gerald J ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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EID: 85017019082     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200001051     Document Type: Article

References (25)

1. H.L.A. Hart, THE CONCEPT OF LAW (1961; 2d ed. with Postscript, Penelope A. Bulloch & Joseph Raz eds., 1994). All subsequent page references to this work in the text will be to the 2d edition [hereinafter Concept].
2. H.L.A. Hart, Legal Theory and the Problem of Sense: Comment, in ISSUES IN CONTEMPORARY :JAL PHILOSOPHY37 (Ruth Gavison ed., 1987) [hereinafter Comment].
3. H.L.A. Hart, ESSAYS ON JURISPRUDENCE AND PHILOSOPHY 13 (1983). Hart makes the same point at Concept 89-90, Legal Theory and the Problem of Sense: Comment note 4.
4. Joseph Raz, ETHICS IN THE PUBLIC DOMAIN 221 (1994).
5. See John Finnis, NATURAL LAW AND NATURAL RIGHTS (1980), ch. I; Leslie Green, The Political Content of Legal Theory, 17 PHIL. Soc. Sci. 1-20 (1987); Raz, ETHICS IN THE PUBLIC DOMAIN note 8, at 192-93, 219-21; Neil MacCormick, Natural Law and the Separation of Law and Morals, in NATURAL LAW THEORIES 111-14 (Robert P. George ed., 1992); WJ. Waluchow, INCLUSIVE LEGAL PosmviSM 19-30 (1994).
6. Despite criticism from various quarters, Hart continued to insist that those who adopt the internal point of view with regard to the law need not ground their acceptance of the law on moral reasons. See H.LA. Hart, ESSAYS ON BENTHAM 157-61 (1982).Concept NATURAL LAW AND NATURAL RIGHTS note 4, at 257. Hart conceded the critics’ point for purposes of this argument.
7. Raz, Despite criticism from various quarters, Hart continued to insist that those who adopt the internal point of view with regard to the law need not ground their acceptance of the law on moral reasons. note 8, at 193; see also id. at 220, 221, and Waluchow, Despite criticism from various quarters, Hart continued to insist that those who adopt the internal point of view with regard to the law need not ground their acceptance of the law on moral reasons. note 9, at 21
8. Raz, Despite criticism from various quarters, Hart continued to insist that those who adopt the internal point of view with regard to the law need not ground their acceptance of the law on moral reasons. note 8 note 8, at 220.
9. Waluchow, Despite criticism from various quarters, Hart continued to insist that those who adopt the internal point of view with regard to the law need not ground their acceptance of the law on moral reasons. note 8 note 8 note 9, at 22.
10. See, e.g., Rolf Sartorius, Hart's Concept of Law, in MORE ESSAYS IN LEGAL PHILOSOPHY 151-61 (Robert S. Summers ed., 1971); and Gerald J. Postema, Coordination and Convention at the Foundations of Law, 11 J. LEGAL STUD. 170-71 (1982).
11. Stephen Perry has some insightful things to say about this problem. See Perry, Hart's Concept of Law note 3,at 121-34.
12. Perry, Stephen Perry has some insightful things to say about this problem. note 3, at 111-12.
13. Thinking of points of view as personal leads naturally to a certain conception of objectivity. Thought of in this way, objectivity is not just another point of view; it is, rather, the absence of any perspective, the “view from nowhere” explored by Thomas Nagel in THE VIEW FROM NOWHERE (1986).
14. See, e.g., Ruth Garrett Millikan, LANGUAGE, THOUGHT AND OTHER BIOLOGICAL CATEGORIES (1984) and, more recently, Ruth Garrett Millikan, Truth-Rules, Hoverlies, and the Kripke-Wittgenstein Paradox, in Ruth Millikan, WHITE QUEEN PSYCHOLOGY AND OTHER ESSA\S 211-39 (1993).
15. I take Joseph Raz's account of reasons as my point of departure in this subsection. I rely on his PRACTICAL REASON AND NORMS 15-35 (2d ed. 1990), and Introduction to his PRACTICAL REASONING 1-17 (1978).
16. See, e.g., Heidi Hurd, MORAL COMBAT (forthcoming), chs. 3-6.
17. See H.L.A. Han, MORAL COMBAT (forthcoming) note 10, at 254, and Joseph Raz, THE MORALITY OF FREEDOM 35-37 (1986).
18. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED 184 (1955) (1832).
19. See Gerald J. Postema, BENTIUM AND THE COMMON LAW TRADITION (1986, 1989) esp ch. 9-
20. Frederick Schaucr, for example, says “definition of law is a matter of choice rather than discover)’, and… moral factors loom large in making that choice.” Frederick Schauer, positivism as Pariah, in THE AUTONOMY OF LAW 34 (Robert P. George ed., 1996). For a criticism o f this way of thinking about legal theory, see Philip Soper, Choosing a Legal Theory on Moral Grounds, 4 Soc. PHIL & POLT 31-18 (1986).
21. Hart, for example, says “definition of law is a matter of choice rather than discover)’, and… moral factors loom large in making that choice.” note 4, at 90; Hart, suprn note 7, at 13.
22. 4J’ eCe refercnces to Ruth Millikan's work in for example, says “definition of law is a matter of choice rather than discover)’, and… moral factors loom large in making that choice.” note 4 note 25.
23. MacCormick, 4J’ eCe refercnces to Ruth Millikan's work in for example, says “definition of law is a matter of choice rather than discover)’, and… moral factors loom large in making that choice.” note 4 note note 9, at 114. Hart made the same point when he observed that, if e ignore the internal point of view, “we cannot properly understand the whole distinctive style o f human thought, speech, and action which is involved in the existence of rules and which constitutes the o normative structure of society.” Hart, 4J’ eCe refercnces to Ruth Millikan's work in for example, says “definition of law is a matter of choice rather than discover)’, and… moral factors loom large in making that choice.” note 4 note note 4, at 88.
24. Raz, MORALITY OF FREEDOM, 4J’ eCe refercnces to Ruth Millikan's work in for example, says “definition of law is a matter of choice rather than discover)’, and… moral factors loom large in making that choice.” note 4 note note 9 note 36, at 63.
25. Id. at 63-64.