Legal Theory Blog

Shapiro on the Rule of Recognition

Scott J. Shapiro (Yale University - Law School) has posted What is the Rule of Recognition (and Does it Exist)? (THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler, Kenneth Himma, eds., Oxford University Press, 2009) on SSRN.  Here is the abstract:

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication.

Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist?

This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea.

Oops--I forget to add "Highly Recommended" when I posted this earlier!

Leiter on Naturalizing Jurisprudence

Brian Leiter (University of Chicago Law School) has posted Naturalizing Jurisprudence: Three Approaches (J. Shook & P. Kurtz (eds.), THE FUTURE OF NATURALISM (Amherst, NY: Prometheus Books, 2009)).  Here is the abstract:

General jurisprudence-that branch of legal philosophy concerned with the nature of law and adjudication-has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford University Press, 2007).

And from the text:

Quine famously suggests that naturalism is “the recognition that it is within science itself, and not in some prior philosophy, that reality is to be identified and described.”5 In that Quinean spirit, Cummins proposes that,

We can give up on intuitions about the nature of space and time and ask instead what sorts of beasts space and time must be if current physical theory is to be true and explanatory. We can give up on intuitions about our representational content and ask instead what [mental] representations must be if current cognitive theory is to be true and explanatory.6

That Quinean version of methodological naturalism about philosophical inquiry may work well where we have bona fide sciences—for example, space-time physics or cognitive neuroscience--to turn to for guidance. But how do we fare when we turn to social scientific accounts of law?

Consider perhaps the leading predictive-explanatory theory of judicial decisions in the political science literature, Segal‟s and Spaeth‟s “Attitudinal Model.”7 Developing ideas first broached by the American Legal Realists,8 Segal and Spaeth argue that the best explanation for judicial decision-making (more precisely, decisions by the U.S. Supreme Court) is to be found in the conjunction of the “the facts of the case” and “the ideological attitudes and values of the justices.”9 Segal and Spaeth identify the “ideological attitudes” of judges based on “the judgments in newspaper editorials that characterize nominees prior to confirmation as liberal or conservative” with respect to particular issues (for example, civil rights and liberties).10 Looking at more than thirty years of search-and-seizure decisions—court decisions about the constitutionality of police practices involving the arrests of criminal suspects and searches of their cars, homes, and property--Segal and Spaeth found that their Attitudinal Model correctly predicted 71% of the votes by justices: that is, the ideological attitudes of the judge towards the underlying compare the Attitudinal Model with some alternatives--most importantly, with what they call “the Legal Model” of decision.11 On the Legal Model, it is valid sources of law, in conjunction with valid interpretive methods applied to those sources, that determine outcomes (call the valid sources and interpretive methods “the class of legal reasons”). The difficulty is that the class of legal reasons is indeterminate: it justifies more than one outcome in appellate disputes. Thus, as Segal and Spaeth write:

If various aspects of the legal model can support either side of any given dispute that comes before the Court, and the quality of these positions cannot be reliably and validly measured a priori, then the legal model hardly satisfies as an explanation of Supreme Court decisions. By being able to “explain” everything, in the end it explains nothing.12

In other words, one can generate no testable predictions from the Legal Model because the class of valid legal reasons justifies, and thus, predicts, multiple outcomes.13

Following Cummins, a naturalized jurisprudence might ask what must law be if current social-scientific theory of adjudication (namely, the Attitudinal Model) is to be true and explanatory? For the Attitudinal Model to be true and explanatory, there has to be, among other things, a clear demarcation between the ideological attitudes of judges (which are causally effective in determining the decisions) and the valid sources of law which are central to the Legal Model‟s competing explanation of judicial decision. Thus, implicit in the Attitudinal Model is quite plainly a concept of law as exhausted by authoritative texts (precedents, statutes, constitutions) which are the raw material of the competing Legal Model, and which exclude the ideological attitudes central to the Attitudinal Model. The concept of law, in turn, that vindicates this assumption is none other than Raz‟s “hard positivist” notion of a rule of recognition whose criteria of legality are exclusively ones of pedigree: a rule (or canon of interpretation) is part of the law by virtue of having a source in legislative enactments, prior court decisions or constitutional provisions. That is the view of law required by the Legal Model, and it is the view of law required to vindicate the Attitudinal Model as providing the best explanation of judicial decision. Raz‟s Hard Positivism, in short, captures what law must be if the Attitudinal Model is true and explanatory.

Highly recommended.

Green on the Rule of Recognition, the Constitution, and Kelsen

Michael Steven Green (College of William and Mary - Marshall-Wythe School of Law) has posted Kelsen, Quietism, and the Rule of Recognition (THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth E. Himma eds., Oxford University Press, Forthcoming) on SSRN.  Here is the abstract:

Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance - facts about what Hart calls the "rule of recognition" for the system.

Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart's approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified - if somewhat imperfectly - in Kelsen's writings, and I end the essay by exploring some difficulties that the quietist approach must face.

And from the paper:

There is an enormous literature on the basic norm, and I cannot do justice here to the many nuances of the idea and the varied roles that it played in Kelsen’s legal theory.94 But for our purposes it is enough to note that the basic norm could not have been understood by Kelsen as playing an explicit role in legal justification.95 The basic norm of the American legal system, for example, would be a non-positive norm authorizing the Constitutional Convention to create Article VII. And no such norm exists. It is simply false that the Convention was so authorized.

It is revealing that toward the end of his career, Kelsen spoke of the basic norm as a Vaihingerian fiction similar to a first cause.96 One can best appreciate both the attractions and the difficulties of the basic norm by treating it as analogous to a first cause. On the one hand, it appears that there must be a first cause – a prime mover – to explain how the chains of cause and effect began. On the other hand, a first cause seems impossible. Everything is caused by something that is itself caused.

Kant described the conflict between these two arguments as an antinomy of pure reason.97 And one can argue that there is a jurisprudential antinomy, in the sense that arguments exist both for and against the basic norm: On the one hand, it seems that the Constitutional Convention must have been authorized to create Article VII, or Article VII would not have the status of law. Indeed, the idea that the Convention was so authorized seems to reveal itself in our commitment to the fact that it was always true, even at the time of the dinosaurs, that Article VII would be valid if created. This seems to presuppose the existence of an eternal non-positive norm authorizing the Convention to create Article VII. On the other hand, we are equally committed to the idea that the creation of Article VII was a revolutionary act, in the sense that when one follows the chain of legal justification, no such authorization can be found.

The basic norm plays no more of an explicit role in legal reasoning than first causes play in scientific reasoning. Like first causes, we are attracted to the basic norm only when reflecting philosophically on our judgments. As far as our actual legal reasoning is concerned, quietism is correct: We take the first constitution as valid without justification. Indeed, any attempt to provide such a justification – whether it is through appeal to rule of recognition facts or the basic norm – will end up distorting our legal judgments.98

Interesting, not only for the light it sheds on "rule of recognition" issues that are unifying theme of the volume, but also for an informative and trenchent discussion of Kelsen.

Waldron on the Concept of Law & the Rule of Law

Jeremy Waldron (New York University - School of Law) has posted The Concept and the Rule of Law (Georgia Law Review, Forthcoming) on SSRN.  Here is the abstract:

This article explores and connects two issues: (1) the relation between the Rule of Law (or legality) and the work we do in general jurisprudence on the concept of law; and (2) the distinction between conceptions of the Rule of Law that emphasize certainty, rules, and predictability and conceptions of the Rule of Law that also emphasize procedure and argument, even when legal argumentation detracts from the certainty emphasized the first set of conceptions. It argues (1) in favour of a more demanding understanding of what law is (informed by the ideal of the Rule of Law) and against "casual positivism" that takes almost any instance of centralized command and control as a legal system. And it argues (2) in favour of a procedural and argumentative conception of the Rule of Law. It connects the two arguments by observing that casual positivism is commonly associated with an impoverished rule-oriented understanding of the Rule of Law is associated commonly; and (following Dworkin and MacCormick) it suggests that a jurisprudence that emphasizes the role of legal argumentation and the institutions that sponsor it, will inevitably bring our conceptions of law and legality very close together.

And from the paper:

If we understand the relation between the concept of law and the Rule of Law in the way that I have urged us to understand it, then the importance of the second procedural current is obvious. No concept of what law is will be adequate if it fails to accord a central role to institutions like courts, to their distinctive procedures and practices like legal argumentation. Conceptual accounts of law that only emphasize rules and say nothing more about legal institutions than that some institutions make rules and some institutions apply them are way too casual in their understanding of what a legal system is. They are like understandings of democracy that neglect the central role of elections. A philosophy of law is impoverished as a general theory if it pays no attention to the formalized procedural aspects of courts and hearings and elementary features like offering both sides an opportunity to be hard. It reveals the emptiness of conceptual analysis if it makes no attempt to capture all this in abstract terms or regards it all this as just a contingent feature of some legal systems and not others, and therefore beneath the notice of general jurisprudence. I said too that even if one could defend focusing purely on the rules themselves, a philosophy of law would still be impoverished if it paid no attention to the defining role of law’s aspiration to coherence among the norms that it contains and to the forms of reasoned argumentation that are involved both in maintaining that consistency and in bringing it to bear in the application of norms to particular cases.

Read this.  Highly recommended.

Yankah on Virtue Jurisprudence

Ekow Yankah (Cardozo) has posted Virtue's Domain on SSRN.  Here is the abstract:

If at the end of your life you were told you had fulfilled all your moral duties, you would be proud. If you were told you only fulfilled your moral duties, you would be less proud. We all aim to do more than fulfill our duties. We wish to have been more generous than obligatory, more patient, more wise... in short, we wish to be virtuous. 

This insight, that there is more to moral well-being than either our moral duties or good consequences, is central to modern virtue ethics. In its important neo-Aristotelian strain, virtue ethics advocates that success in life is also determined by living an ethically rich life, showing sound practical reasoning and exhibiting the human virtues. 

Virtue ethics is also importantly influencing jurisprudence. Understanding the role virtue plays in law reveals the way in which our criminal punishment regimes are based on a view of poor underlying character. When these insights are embedded in law, however, things go horribly awry. Because virtue theories premise blame, in part, on a failing of character within the offender, they alter our view of the offender and create a permanent criminal caste. With our compassion blunted, our ugliest prejudices flourish and we fail to notice that our criminal law has become a powerful tool of racial and class suppression. Equally disturbing, even the most sophisticated character theories cannot be reconciled with our commitment to liberalism, particularly with the central place of autonomy within liberalism. 

This article argues that only by returning to Kantian and Hegelian Act theories of punishment can we dissolve the view of offenders as permanently tainted and stay true to our liberal commitments.

And from the paper:

A virtue-based theory must take some form of the promotion of human excellence as its primary commitment.150 Of course, an aretaic theory of law may view autonomy as important insofar as it is crucial to the development of human excellence.151 Viewing aretaic theory in this light makes it a great deal more plausible and attractive. After all, any sensible theory of the promotion of human excellence must make space for autonomy; space for choosing and learning to choose valuable ends. Aristotle, for example, importantly believed that part of becoming an excellent person was learning to choose the right acts for the right reasons.152 Similarly, it is a familiar argument in liberal thinking that one cannot be coerced into living the good life because it is a precondition for living the good life that one chooses it. Dworkin, for example, notes that one cannot live a good life if forced to live against one’s own convictions.153 Accordingly, Kymlicka has argued that an authentically good life must be lived “from the inside, in accordance with our beliefs about what gives value to life.”154

But one must be careful in making space for autonomy in a virtue ethic, for a single note may dominate the harmony. If an aretaic theory comes to view autonomy as constitutive of human excellence such that everything required to protect autonomy is co-extensive with promoting human excellence, there will be 148 Id.little distinctively aretaic about it.155 This may well be an acceptable détente, with both theories sharing every conclusion but disagreeing as to why. If this is true, so be it… But it does seem to be suspicious. One fears that this conclusion simply rereads aretaic theories as Kantian autonomy (perhaps without rules). A pale sort of virtue as veneer.

What is needed to disentangle the intrinsic values of virtue and autonomy is a case where they are in conflict. Let us take the case of a particular type of harm-to-self. Imagine a fully-functioning, normal adult, free of excessive burdens on her choices, who has autonomously chosen a life that we will stipulate sets her against the human excellences. Let us say, despite a number of reasonable choices, that she has chosen to become a prostitute – a modern Séverine Serizy. Of course, some may find this example hopelessly parochial or prudish, but grant, for the moment, that a proper relationship to one’s own sexuality and sexual intimacy makes Séverine’s submitting sex for sale harmful to herself. It is also fair to note that, though complicated to some, prostitution is a wrong that coincides with many people’s pre-legal sense of wrong. After all, it is currently illegal in all but a few places in the United States. Let us, to be sure, propose that she also believes that she is making a poor choice.156

I take it a robust aretaic theory of law would find Serizy deeply troubling, leveling punishment unless there were strong countervailing reasons that would weaken her well-being or the well-being of society. It is important to note aretaic theorists may have good reasons to avoid punishing prostitution. Perhaps criminalizing this behavior will prevent people from making important decisions about the role of work and sexuality in their lives necessary to develop into successful persons. Perhaps sound practical reasoning requires the ability to exercise poor reasoning or prostitution is only mistakenly believed to be an act that harms others. More plausibly, the intrusive methods necessary to criminalize and enforce certain laws may be too damaging to human society. Thus, there is no need to assume that an aretaic theory would necessarily outlaw prostitution.

Still, in the absence of the kind of countervailing reasons above, I take it an aretaic theory should be ready to prohibit Serizy’s actions.

Highly recommended.

I am one of the central targets of this essay, although my own work on virtue jurisprudence does not articulate a theory of criminal punishment.  My general views are set articulated most fully in two papers:

Virtue Jurisprudence: A Virtue-Centered Theory of Judging

Natural Justice

Revised versions of these essays and many other pieces on aretaic legal theory can be found in the anthology, Virtue Jurispduence.

Just one quick comment on Yankah's argument.  Yankah's conclusion that virtue ethics is inconsistent with a theory that views autonomy as the highest (and perhaps only noninstrumental) value is, in my view, correct.  But it does not follow that virtue ethics must relegate autonomy to the role of an instrumental good--there are other possibilities.  For example, it could be that some form of autonomy is constituitive of human flourishing.  Certainly, an Aristotelian virtue ethics could (and in my view should) adopt this view of the relationship between autonomy and flourishing.  If an appropriately conceptualized view of human autonomy is accepted as a constituent part of human flourishing and if the proper end of law is to promote human flourishing, then the law should aim to create the conditions for the development, maintenance, and excerize of autonomy by humans.  But as Yankah sees, this aim would be integrated with the promotion of other aspects of human flourishing.

Yankah's hypothetical is an interesting one.  From a practical perspective, given the actual conditions of human life, the question whether Séverine's actions should be subject to criminal punishment is likely to be determined by a variety of empirical facts.  For example, it may be the case that criminalization of prostitution leads to conditions that systematically undermine human flourishing by isolating sex workers and facilitating their exploitation.  Ekow asks us to imagine a possible world in which there were no such consequences--for example, a world in which the only consequence of criminalization would be to reduce the incidence of prostitution and result in punishments that would not themselves seriously impair the flourishing of those who incurred them.  Even with these assumptions in place, Yankah needs another assumption--that engaging in sex work is inconsistent with human flourishing (otherwise there would be no reason internal to aretaic theory to criminalize it).  Where the hypothetical goes from there must surely depend on the particular reasons for concluding that sex work is contrary to human flourishing.  For example, we might suppose that sex work systematically undermines the capacity of humans to engage in meaningful relationships involving intimacy.  In a possible world in which all of these assumptions held, then an aretaic theory of criminal law might lead us to the conclusion that Séverine's actions should be prohibited by law.  Much more would need to be said, but this case (in my opinion) would count in favor of an aretaic theory of criminal law and against an autonomy based theory--insofar as the our considered intuitions about the case are concerned.

Read Yankah!

Claus on Authority

Laurie Claus (University of San Diego) has posted The Empty Idea of Authority on SSRN.  Here is the abstract:

The idea of authority is a fabrication. Claims of moral right to be obeyed owe their historic salience to the self-interest of claimants. When Enlightenment scholars demolished the divine right of kings, they should have disabused us of the right, not just of the notions that it came from the divine and belonged to kings. Their effort to salvage the idea of right to rule and to press it into serving as support for their favored governments was understandable but unjustified.

Claims of moral right to be obeyed have their origins in creationist accounts of law and government. This article presents an evolutionary account of law and government. The law of a human community is a self-generating, self-recognizing system of human communications that signals likely action within that community. Law is a signaling system that uniquely serves and symbiotically defines a human community. Autopoiesis, not authority, is the phenomenon that authentically animates law and government.

No theory of moral right to be obeyed illuminates the nature of law. The most prominent contemporary thesis, Joseph Raz's normal justification of authority, does not identify a right that can honestly be claimed by lawgivers or that ever really belongs to them.

Conventionalist analyses of H.L.A. Hart's rule of recognition implicitly acknowledge that a rule's effectiveness may derive exclusively from success in signaling likely human action. This article argues that the character and effectiveness of all law derives exclusively from participating in a self-recognizing system that successfully signals likely human action.

Understanding law as an autopoietic signaling system frees us to discard the idea of authority. This article articulates a vision of law-as-signaling-system and surveys some of that vision's implications for contemporary preoccupations of legal theory.

This paper gets my most enthusiastic recommendation--a truly important paper that almost every legal academic should read.

Download it while its hot!

Alexander & Schauer on Rules of Recognition & Acceptance

Larry Alexander and Frederick Schauer (University of San Diego School of Law and Harvard University - John F. Kennedy School of Government) have posted Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance (The Rule of Recognition and the U.S. Constitution (Matthew Adler & Kenneth Himma, eds., Oxford University Press 2009)) on SSRN.  Here is the abstract:

In this essay we take up the question of the non-legal foundations of any legal system, and in particular H.L.A. Hart's notion of the ultimate rule of recognition, the master rule that pedigrees the other rules governing what officials and citizens are legally obligated to do. Initially, we shall raise but not necessarily resolve several questions about Hart's own account of the rule of recognition. But even though we leave those questions largely unresolved, we shall come away from this discussion with a sufficiently firm grasp of the idea of a rule of recognition to proceed to the second part of the essay. In that part we look at the United States Constitution - and the practices that have developed regarding its interpretation and enforcement - through the lens of the idea of an ultimate rule of recognition. And when we do so, we shall encounter some foundational questions about constitutional law and interpretation: Does the rule of recognition in the American legal system change over time, and if so, how does this occur? Has the Constitution itself changed other than by organic processes - processes prescribed by the Constitution itself - and, if so, how? If interpreters employ different interpretive methodologies in interpreting the Constitution, is there one constitution, or are there several (overlapping) constitutions? And if the latter, how is stability achieved? If the Supreme Court (or some other governmental body with final interpretive authority) misinterprets the Constitution, what is the legal status of such a misinterpretation, and why? And finally, given that one function of a constitution is to entrench the "rules of the game," and given that any entrenched rule will suffer from over- and under-inclusiveness with respect to its background purposes, how is it possible for officials and citizens to accept as binding the ultimate rule of recognition and the constitutional and subconstitutional rules it pedigrees?

Highly recommended!

Mikail on Moral Grammar & Intuitive Jurisprudence

John Mikhail (Georgetown University - Law Center) has posted Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge (THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009 ) on SSRN.  Here is the abstract:

Could a computer be programmed to make moral judgments about cases of intentional harm and unreasonable risk that match those judgments people already make intuitively? If the human moral sense is an unconscious computational mechanism of some sort, as many cognitive scientists have suggested, then the answer should be yes. So too if the search for reflective equilibrium is a sound enterprise, since achieving this state of affairs requires demarcating a set of considered judgments, stating them as explanandum sentences, and formulating a set of algorithms from which they can be derived. The same is true for theories that emphasize the role of emotions or heuristics in moral cognition, since they ultimately depend on intuitive appraisals of the stimulus that accomplish essentially the same tasks. Drawing on deontic logic, action theory, moral philosophy, and the common law of tort, particularly Terry's five-variable calculus of risk, I outline a formal model of moral grammar and intuitive jurisprudence along the foregoing lines, which defines the abstract properties of the relevant mapping and demonstrates their descriptive adequacy with respect to a range of common moral intuitions, which experimental studies have suggested may be universal or nearly so. Framing effects, protected values, and implications for the neuroscience of moral intuition are also discussed.

And from the paper:

[W]e have discovered how certain fundamental legal conceptions can be utilized in this endeavor to explain an interesting range of moral intuitions, which prior experimental studies have indicated may be universal, or nearly so. By postulating latent knowledge of these and other basic legal norms, we can accurately predict human moral intuitions in a huge number and variety of actual cases. How this knowledge is acquired and put to use in different cultural, social, and institutional contexts thus emerge as pressing questions for law, philosophy, the social sciences, and the cognitive and brain sciences, broadly construed. As difficult to accept as it may seem, there are grounds for thinking that much of this knowledge may be innate or rooted in universal human instincts, as many cognitive scientists, philosophers, and jurists have often assumed. The argument is not conclusive, however, and more crossdisciplinary research is needed to clarify the relevant conceptual and evidentiary issues.

Mikhail's work is important, and this paper contains both a statement of the general view and the most thorough development yet of the moral grammar hypothesis.  Highly recommended.  Download it while its hot!

Kerr and Volokh on the Nature of Constitutional Law and the Is-Ought Distinction

Orin Kerr & Sasha Volokh have an interesting exchange going on the is-ought distinction & the nature of (constitutional) law.  There are four posts:

Kerr-Confusing "Is" and "Ought" in Constitutional Law

Volokk-Is the "is"/"ought" distinction so clear in constitutional law?

Kerr-A Reply to Sasha on The "Is"/"Ought" Distinction

Volokh-Day of the Iguana

The exchange is well worth reading--and it points, I think, to the continued importance of mastering the core literature in the what-is-law debate, roughly the Hart-Dworkin-Raz-Coleman-Shapiro line of development.  If you read the exchange, you will see echos of Holmes's prediction theory of law and its critics and refracted versions of exclusive and inclusive legal positivism, with perhaps a dash of Dworkin.

Halpin on MacCormick on Conceptual Analysis & Methodology

Andrew Halpin (Swansea University School of Law) has posted Methodology and the Articulation of Insight: Some Lessons from MacCormick's 'Institutions of Law' (LAW AS INSTITUTIONAL NORMATIVE ORDER, Zenon Bankowski, Maksymilian Del Mar, eds., Ashgate, 2008) on SSRN. Here is the abstract:

This contribution to a collection on Neil MacCormick's INSTITUTIONS OF LAW explores the general relationship between theoretical methodology and analytical insight through exploring issues regarding the general enterprise of intellectual inquiry, the value of conceptual analysis, and the role of theoretical methodology. A broader portrayal of conceptual analysis is advanced than that allowed by Brian Leiter in his embrace of naturalism. It recognizes four distinct roles for conceptual analysis: (1) initial elucidatory expository analysis; (2) secondary expository analysis; (3) exploratory explanatory analysis; (4) normatively exploratory analysis. From this broader perspective, observations are made on epistemology, particular problems in conceptual anlaysis, and the possibility of theoretical disagreement.

Through linking sound methodology to an appropriate role for conceptual analysis, a number of interventions are made in the contemporary debate over methodology in jurisprudence, engaging with the views of Dworkin, Leiter and Dickson. Emphasis is laid on the significant part to be played by the particular experiential base relating to the subject matter under investigation in the articulation of valuable insight. The extent to which MacCormick's work illustrates and promotes this approach is considered in some detail.