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19 results

Law’s Language

Law’s Language
  • Meaning and Normativity
  • Daniel Wodak
  • Published online:
    17 November 2025
    Print publication:
    11 December 2025
  • The language of law includes normative or prescriptive terms such as 'obligation' and 'permission'. How do we explain the meaning of prescriptive legal language? This has long been regarded as a problem for positivists, since at first glance their view suggests we can derive an ought – a legal obligation or right or permission – from descriptive social facts alone. This Element outlines what we should want from a semantics of prescriptive legal language, critically evaluates four leading semantic accounts, and argues that legal prescriptivity is not, in the end, a problem for positivists.
The Metaphysics of Legal Facts

The Metaphysics of Legal Facts
  • Samuele Chilovi
  • Published online:
    30 September 2025
    Print publication:
    30 October 2025
    • Element
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  • This Element tackles the question of how – in what way, and in virtue of what – facts about the legal properties and relations of particulars (such as their rights, duties, powers, etc.) are metaphysically explained. This question is divided into two separate issues. First, the Element focuses on the nature of the explanatory relation connecting legal facts to their metaphysical determinants. Second, it looks into the kinds of entities that figure in the explanation of legal facts. In doing so, special attention is paid to the role that laws, or legal norms, play in such explanations. As it turns out, there are different ways in which legal facts might be explained, all of which have something to be said in their favor, and none of which is immune from problems. This title is also available as Open Access on Cambridge Core.
The Impasse of Constitutional Rights

The Impasse of Constitutional Rights
  • Jacob Weinrib
  • Published online:
    04 April 2025
    Print publication:
    06 March 2025
  • Constitutional rights are often seen as invitations to engage in all things considered moral reasoning about how public authorities should act. The Impasse of Constitutional Rights challenges this widely accepted view by showing that it generates an irresolvable deadlock between rival theories of constitutional rights that share the same defects. This Element develops the alternative idea that rights-based constitutional order has its own distinctive moral project, which consists in rendering public authority accountable to the inherent rights of each legal subject. Taking this project seriously requires reconceiving the basic building blocks of rights-based constitutional order: justification, purposive interpretation, and proportionality. The resulting account both escapes the impasse to which the leading contemporary theories of constitutional rights succumb and expounds the normative connection between rights-based constitutional order and its most fundamental doctrines.
Subsidiarity

Subsidiarity
  • Andreas Follesdal
  • Published online:
    20 February 2025
    Print publication:
    20 February 2025
  • 'Subsidiarity' is vague and contested, yet popular in scholarship about international law due to its role in the European Union (EU). Which conceptions of subsidiarity are more justifiable, and how might they contribute to international law? A principle of subsidiarity concerns how to establish, allocate, or use authority within a social or legal order, stating a rebuttable presumption for the local. Various historical patterns, practices, principles, and justifications offer different recommendations. Seven normative theories vary in how immunity protecting or person promoting they are. The latter appear more justifiable and withstand criticism often raised against subsidiarity. Some conceptions of person promoting subsidiarity serve as a structuring principle for international law and fullfills several criteria of a general principle of law. It can harmonize domestic and international law but is not sufficient to reduce fragmentation among sectors with different objectives.
Contemporary Non-Positivism

Contemporary Non-Positivism
  • Emad H. Atiq
  • Published online:
    20 February 2025
    Print publication:
    20 February 2025
  • This Element defends and clarifies the thesis that the legality of a system of rules depends on its moral features. Positivists who deny this dependence struggle to explain: (1) the traditional classification of moral norms as a form of a priori law; (2) judicial reliance on moral norms in legal discovery; (3) persistent theoretical disagreement about intra-systemic, law-determining facts; (4) why radically arbitrary or immoral schemes of social organization represent borderline cases of law; and (5) why law, like other artifacts, can be evaluated in a kind-relative sense (“as law”). Meanwhile, traditional versions of non-positivism overstate the dependence going further than the desiderata warrant. A moderate theory is formulated: law is an artifact whose existence depends on adequately performing an essentially normative function. The theory's justification lies in its explanatory power: a comparison with other “value-driven” artifacts, such as artworks, proves vital for understanding legal language, reasoning, and practice.
Dignity and Rights

Dignity and Rights
  • Ariel Zylberman
  • Published online:
    06 February 2025
    Print publication:
    06 February 2025
  • Dignity and rights are pervasive ideas. But how exactly should we understand them? Although philosophical theories of dignity and of rights typically proceed independently of each other, this Element treats them together. One advantage of doing so is that we can see a deeper unity underlying the familiar difficulties of standard accounts of dignity and rights (Sections 1 and 2). A second advantage is that understanding how many of the difficulties stem from the reductivist structure of the standard accounts lets us envisage a non-reductivist alternative. Drawing from the metaphysics of kinds and dispositions and from social ontology shows that dignity and rights are fundamental and interdependent normative properties. As pre-conventional properties (Section 3), dignity and rights mark a distinct type of value and function dispositionally, directed to actualization through recognition by others. As social properties (Section 4), they specify the normative status and entitlements constitutive of social kinds.
Legal Rights and Moral Rights

Legal Rights and Moral Rights
  • Matthew H. Kramer
  • Published online:
    02 January 2025
    Print publication:
    16 January 2025
  • In a short span, this Element will delineate the general nature of legal and moral rights and the general nature of the holding of rights, and it will also sketch the justificatory foundations of rights. Hence, the Element will treat of some major topics within legal, political, and moral philosophy as it combines analytical theses and ethical theses in a complex pattern.
The Nature of Authority

The Nature of Authority
  • Kenneth Einar Himma
  • Published online:
    04 December 2024
    Print publication:
    09 January 2025
  • The Nature of Authority provides a comprehensive theory of the nature of authoritative guidance. It argues that the following claims exhaust the constitutive properties of authoritative tellings: authoritative tellings (1) tell subjects what to do; (2) give rise to reasons to comply; (3) are issued by personal beings and govern the behavior of personal beings; (4) are issued by rationally competent beings and govern the behavior of rationally competent beings; (5) are issued under a claim of right that counts as plausible in virtue of being grounded in a system to which subjects acquiesce as governing their behavior; (6) are issued by beings with the power to impose their will on subjects with respect to what they do; (7) create obligations to comply; and (8) are backed by a threat of detriment that is reasonably contrived to deter enough noncompliance to enable the system to minimally achieve its ends.
The Normativity of Law

The Normativity of Law
  • Michael Giudice
  • Published online:
    30 November 2024
    Print publication:
    19 December 2024
  • In the philosophy of law there has been a proliferation of advanced work in the last thirty years on the normativity of law. Recent theories explore law's character as a special kind of convention, shared cooperative activity, and social artifact, among other perspectives, to explain the precise way in which law provides subjects with reasons for action. Yet, for all their sophistication, such accounts fail to deliver on their promise, which is to establish how law creates more than just legal reasons for action. This Element aims to survey these views and others, situate them in a broader context of theories about the nature of law, and subsequently suggest a path forward based on the methodological continuity between analytical, evaluative, and empirical approaches to law's normativity.
Content-Independence in Law

Content-Independence in Law
  • Possibility and Potential
  • Julie Dickson
  • Published online:
    27 November 2024
    Print publication:
    19 December 2024
  • This Element examines the notion of content-independence and its relevance for understanding various aspects of the character of law. Its task should be understood expansively, as encompassing both inquiry into that which makes law into what it is, and inquiry into what law ought to be, which values it ought to serve, and which aspects of its character may play a facilitative role in law realising aspects of its potential. Many existing discussions of content-independence focus largely on the justificatory aspects of content-independence: whether, and, if so, how, there can be content-independent reasons for action, or content-independent justifications of rules, or the extent to which political obligation is content-independent. This Element, too, examines such issues but also seeks to explore an additional possibility: that the notion of content-independence can illuminate issues regarding law's existence, identification, and systematicity.
The Philosophy of Legal Proof

The Philosophy of Legal Proof
  • Lewis Ross
  • Published online:
    23 April 2024
    Print publication:
    16 May 2024
  • Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces the standards of proof and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes or use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system.
Legal Personhood

Legal Personhood
  • Visa A. J. Kurki
  • Published online:
    06 December 2023
    Print publication:
    21 December 2023
    • Element
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  • This Element presents the notion of legal personhood, which is a foundational concept of Western law. It explores the theoretical and philosophical foundations of legal personhood, such as how legal personhood is defined and whether legal personhood is connected to personhood as a general notion. It also scrutinises particular categories of legal personhood. It first focuses on two classical categories: natural persons (human beings) and artificial persons (corporations). The discussions of natural persons also cover the developing legal status of children and individuals with disabilities. The Element also presents three emerging categories of legal personhood: animals, nature and natural objects, and AI systems. This title is also available as Open Access on Cambridge Core.
The Moral Prerequisites of the Criminal Law

The Moral Prerequisites of the Criminal Law
  • Legal Moralism and the Problem of Mala Prohibita
  • Ambrose Y. K. Lee, Alexander F. Sarch
  • Published online:
    28 September 2023
    Print publication:
    19 October 2023
  • Modern states criminalise many actions that intuitively do not seem morally wrong, particularly in the context of regulating complex industries or activities. Are mala prohibita offences of this kind fundamentally mistaken? Many criminal law scholars have thought so and argued that conduct must be morally wrong to be legitimately criminalised. This Element examines the longstanding debates about whether this idea is right, and what we would lose if we either abandoned the criminal law's close connection to morality or our use of the very useful tool of mala prohibita crimes. This Element argues that there are a range of promising arguments for reconciling mala prohibita offences with the wrongness constraint on criminalisation. Thus, it seeks to shed light on the aims of the criminal law and the moral prerequisites for legitimate criminalisation.
The Differentiation and Autonomy of Law

The Differentiation and Autonomy of Law
  • Emilios Christodoulidis
  • Published online:
    13 September 2023
    Print publication:
    05 October 2023
  • This Element looks first at the fundamental principle of modernity that is the functional differentiation of society, and the emergence of autonomous, positive law. The careful architecture of differentiation, balance, and mutual performance between the legal, political and economic systems is jeopardised with the hypertrophy of any one of the structurally coupled systems at the expense of the others. The pathologies are described in the second section of the Element. It explores how, under conditions of globalisation, market thinking came to hoist itself to the position of privileged site of societal rationality. In the third section we look at what sustains law's own 'reflexive intelligence' under conditions of globalisation, and whether we can still rely today on the constitutional achievement to guarantee law's autonomy, its democratic credentials and its ability to reproduce normative expectations today.
The Place of Coercion in Law

The Place of Coercion in Law
  • Triantafyllos Gkouvas
  • Published online:
    27 March 2023
    Print publication:
    13 April 2023
  • The question of whether coercion is a necessary or contingent feature of governance by law is a historically complex aspect of a venerable 'modalist' trend in jurisprudential thinking. The nature of the relation between law and coercion has been elaborated by means of a variety of modally qualified accounts, all converging in a more or less committing response to whether the language, concept or essence of law as a system of governance necessarily entails the coercive character of this system. This Element remodels in non-modal terms the way in which legal philosophers can meaningfully disagree about the coercive character of governance by law. On this alternative model, there can be no meaningful disagreement about whether law is coercive without prior agreement on the contours of a theory of how law is made.
Revisiting the Rule of Law

Revisiting the Rule of Law
  • Kristen Rundle
  • Published online:
    01 December 2022
    Print publication:
    05 January 2023
  • This Element offers an accessible introduction to theoretical writing on the rule of law for anyone who wants to understand more about how we think and write about this central idea of legal and political thought. Part 1, 'Approaching the Rule of Law', examines the methods through which the idea of the rule of law is typically approached by those who set out to theorise it. Part 2, 'Untangling the Rule of Law', asks whether it is possible to untangle the rule of law from the various contributions, companions, connections, conflations and controversies with which it tends to be associated. Part 3, 'Revisiting the Rule of Law', signals to new frontiers of rule of law thought by addressing the assumptions about legal form that shape its theoretical treatment, and by investigating what we know about the people who carry its burdens and benefit from its offerings.
Sociological Approaches to Theories of Law

Sociological Approaches to Theories of Law
  • Brian Z. Tamanaha
  • Published online:
    18 May 2022
    Print publication:
    23 June 2022
  • Sociological Approaches to Theories of Law applies empirical insights to examine theories of law proffered by analytical jurisprudents. The topics covered include artifact legal theory, law as a social construction, idealized accounts of the function of law, the dis-embeddeness of legal systems, the purported guidance function of law, the false social efficacy thesis, missteps in the quest to answer 'What is law?', and the relationship between empiricism and analytical jurisprudence. The analysis shows that on a number of central issues analytical jurisprudents assert positions inconsistent with the social reality of law. Woven throughout the text, the author presents a theoretically and empirically informed account of law as a social institution. The overarching theme is that philosophical claims about the nature of law can be tested and improved through greater empirical input.
The Materiality of the Legal Order

The Materiality of the Legal Order
  • Marco Goldoni
  • Published online:
    22 April 2022
    Print publication:
    19 May 2022
  • This Element aims to explore how the relation between societal organisation and legal orders – the question of materiality – has been investigated in philosophy of law. The starting point of the Element is that such relation has often been left invisible or thematised in poor and reductive terms. After having explained the main reasons behind this neglect, the Element provides an overview of the three main approaches to legal philosophy whose contributions, though not always effective, can still provide some insights for a contemporary analysis of legal orders' materiality: materialism, legal institutionalism, and the new materialism. The last section of the Element suggests looking for a footing for the study of materiality in two fields: the metaphysics of relations and the political economy of legal orders.
Hans Kelsen's Normativism

Hans Kelsen's Normativism
  • Carsten Heidemann
  • Published online:
    31 January 2022
    Print publication:
    03 March 2022
  • Hans Kelsen's Pure Theory of Law is the most prominent example of legal normativism. This text traces its origins and its genesis. In philosophy, normativism started with Hume's distinction between Is- and Ought-propositions. Kant distinguished practical from theoretical judgments, while resting even the latter on normativity. Following him, Lotze and the Baden neo-Kantians instrumentalized normativism to secure a sphere of knowledge which is not subject to the natural sciences. Even in his first major text, Kelsen claims that law is solely a matter of Ought or normativity. In the second phase of his writings, he places himself into the neo-Kantian tradition, holding legal norms to be Ought-judgments of legal science. In the third phase, he advocates a barely coherent naive normative realism. In the fourth phase, he supplements the realist view with a strict will-theory of norms, coupled with set-pieces from linguistic philosophy; classical normativism is more or less dismantled.