Separability Thesis: Fuller and Rabdruch (original) (raw)

The Claim to Correctness and Moral Constraints on Law: a Critic to the Separability Thesis

Revista Brasileira de Direito

O presente artigo explica a pretensão de correção e os seus efeitos limitadores sobre o Direito, de acordo com a teoria do direito de Robert Alexy. Para apresentar isso, na primeira seção é apresentado o conceito e a natureza normativa da pretensão de correção na visão de Robert Alexy. Na segunda seção são apresentadas as respostas de Eugenio Bulygin e Joseph Raz à pretensão de correção. Na terceira seção é conectada a pretensão de correção à ideia de lmitações morais para, no final, na quarta seção, ser apresentadas considerações sobre a pretensão de correção, em especial, proposta para reduzir o grau de arbitrariedade e injustiça no direito.

Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence

Oxford Journal of Legal Studies, 2007

In emphasizing the importance of the separability thesis, legal philosophers have inadequately appreciated other philosophically important ways in which law and morality are or might be connected with one another. In this article, I argue that the separability thesis cannot shoulder the philosophical burdens that it has been asked to bear. I then turn to two issues of greater importance to jurisprudence. These are 'the moral semantics of law' and 'the normativity of theory construction in jurisprudence'. The moral semantics claim is that legal content is best understood as moral directives about what is to be done and who is to decide what is to be done. The problem is that legal positivists typically hold that only social facts contribute to the content of law, and it is hard to see how a positivist can hold both the social-facts claim and the moral-semantics claim. I argue that not only are the two claims consistent with one another, but that legal positivists must hold some version of the moral semantics claim if they are to make sense of the claim that legal reasons purport to be content-independent moral reasons for acting. In Section 3 of the article, I take up the question of whether theory construction in jurisprudence is normative or descriptive. This is hard to do in part because so little attention has been paid to correctly formulating the issue. I suggest a demanding test for descriptivism; namely, that an adequate analysis of law can be provided entirely in terms of its formal features. I then defend this claim against three arguments designed to show because governance by law is necessarily desirable or valuable that, we cannot characterize law without making reference to those values or to other material features of law. This constitutes a limited but powerful defence of descriptive jurisprudence. † This is such an extensively revised version of the Hart Lecture that I presented at Oxford in May, 2006 that I hesitate to call it my 'Hart Lecture'. In that lecture, I explored the question whether the fact of theoretical disagreement in law requires that judges have theories of law as a silent partner in adjudication. I am sure there is a path that took me from those remarks to this article, but I cannot imagine that it would be worth the effort to reconstruct it. In any case, along the way I benefited from numerous conversations and from comments on previous drafts of both this article and its distant relatives. I am particularly grateful to Matthew Smith,

The Demarcation Problem in Jurisprudence A .DOC

I am also grateful to Frederick Schauer for written comments on that draft. The penultimate version was improved by astute criticisms of an anonymous referee for OJLS and by questions from an audience at the international conference on 'The Nature of Law,' sponsored by McMaster University in Hamilton, Ontario on 12-15 May 2011; I can recall particularly helpful questions or comments on that occasion from

A Treatise of Legal Philosophy and General Jurisprudence

Ratio Juris, 2006

Samuel Freiherr von Pufendorf (1632-1694) 1 was the most celebrated German legal philosopher of the second half of the 17th century, in virtue of three widely disseminated jurisprudential works: De Jure Naturae et Gentium (1670), De Officio Hominis et Civilis (1682), and the so-called Eris Scandica (Palladini 1996, passim). He was (within certain limits) admired by his exact contemporary John Locke (1632-1704), who often referred his correspondents to Pufendorf's works (when Locke himself declined to write "a book of offices") (Dunn 1969, 38ff.); he was made even better known by the contempt of Leibniz, who styled Pufendorf "not much of a lawyer and even less of a philosopher," 2 and who provoked Jean Barbeyrac and Christian Thomasius into spirited defenses of Pufendorfism. What Pufendorf's defenders most admired (as will be seen later) was his total separation of natural law from both moral theology and revealed divine law: In this "secularization" of natural law Pufendorf followed in one way Hugo Grotius (etiamsi daremus), in another way Hobbes (who had usually made natural law only a set of rational "theorems" concerning self-preservation) (Hobbes 1957, chap. 14). 3 To be sure, in his eclectic, synthetic fusion of Grotius and Hobbes, Pufendorf brought together Hobbesian rational self-conservation and Grotian "natural" sociability-not an easy or obvious task, given Hobbes's grim notion of "nature" as a moral vacuum in which "force and fraud are cardinal virtues" (Hobbes 1957, chap. 13), indeed as a state of war in which natural sociability is painfully absentand he defended this eclectic fusion of the two greatest jurisconsults of the first half of the 17th century with extensive quotations from Roman jurisprudence, and above all from Cicero and Seneca. 4 What matters most in Pufendorf is his expounding of a so-called "modern" natural law in which God and Scripture (and any notion of a "confessional" state) 5 are kept safely away from a natural law and natural justice grounded simply in reason and natural sociability (and hence equally available to adherents of all religions whatsoever).

Legal Theory, Law, and Normativity

This is an extended review (ca. 4,500 words) of Joseph Raz's "Between Authority and Interpretation." Joseph Raz’s new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz’s topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz’s thinking on these topics, I raise some room for doubt – especially with regard to his pessimism about fijinding a uniquely best theory of law and the relationship between law and morality.