Exploring the Background: Puzzles, Afterthoughts, and Replies

In this paper I review the comments, and reply to the objections, put forward in the commentaries to my essay “Pre-conventions. A fragment of the Background”, published in issues n. 30 and 32 of Revus – Journal for Constitutional Theory and Philosophy of Law. My remarks fall under the following headings: 1. the social dimension of pre-conventions; 2. pre-conventions and ordinary habits and dispositions; 3. whether my examples are mistaken; 4. reasons and causes; 5. normative facts; 6. whether abstract entities can be causes; 7. are pre-conventions conditions of Lewis-conventions? 8. What can pre-conventions do for legal theory? 9. Whether I discharged my argumentative burdens

Pre-convenzioni: un frammento dello Sfondo

In this paper I argue that there exist conventions of a peculiar sort, which are neither norms nor regularities of behaviour, partaking of both. I proceed as follows. After a sketchy analysis of the meaning of ‘convention’, I give some examples of the kind of phenomena I have in mind: bodily skills, know-how, taste and style, habitus (P. Bourdieu), «disciplines» (M. Foucault). Then I group some arguments supporting my claim: (i) considerations about the identity conditions of precedents (D. Lewis) and about the projectibility of predicates in inductive inference generally (N. Goodman); (ii) thoughts about rule-following (L. Wittgenstein); (iii) an examination of some of J. R. Searle’s ideas about the «Background» of intentionality. I conclude with some remarks about the time-honoured antithesis ‘nature’ v. ‘convention’

Publicity and the Rule of Law

By the ‘Rule of Law’ I mean a set of formal and institutional features the law may possess in varying degrees. These features define an ideal, which laws have traditionally been expected to live up to. One of these features is publicity. Part of what constitutes the Rule of Law is the requirement that the laws should be public. This is the subject of this paper. When it is claimed that the Rule of Law requires that the laws should be public, what is to be understood by this claim? My main claim is that the Rule of Law requirement of publicity is best understood in terms of the notion of common, or mutual, knowledge. When it is required that the laws should be public, what should be meant by this is not only that each one of the law’s addressees should know what the law is, but also that everybody should know that everybody knows what the law is, that everybody should know that everybody knows that everybody knows what the law is, and so on. This may look unnecessarily complicated. I’ll try to show that this is a false impression, and that understanding the publicity requirement along these lines illuminates various aspects of the normative ideal the publicity requirement may be taken to embody

Liberal Multiculturalism, neutrality and the Rule of Law

Most contemporary liberal theories of justice agree that principles of justice should be neutral between citizens’ conceptions of the good life. In this essay, I assume that the liberal doctrine of state neutrality can somehow be defended against its critics. y first aim is to show that a certain connection holds between liberal neutrality, suitably understood, on the one hand, and, on the other hand, the Rule of Law. By the ‘Rule of Law’ I mean, as has now become usual among legal theorists, a set of formal and institutional features the law may possess in varying degrees. These features define an ideal, which laws have traditionally been expected to live up to. It is, under many respects, a modest ideal. Specifically, the Rule of Law, by itself, does not guarantee liberal neutrality. But, I argue, there is something neutral about it. More precisely. a specific version of the Rule of Law --I call this ‘Enlightenment Rule of Law’--illuminatingly instantiates part of what is involved in the idea of liberal neutrality. Il show, secondly, that the Rule of Law is part and parcel of what is involved in liberal multiculturalism. I use the label ‘liberal multiculturalism’ in the sense developed by W. Kymlicka. So understood, it designates a loose set of policies, and the principles supporting them, designed to acknowledge and accomodate ethnocultural minorities, and to secure to individuals the good of cultural membership. Laws that fully meet the requirements of the Rule of Law may certainly run counter human rights. Conformity to the Rule of Law, however, is a necessary condition for respecting human rights. Respect for human rights, in turn, is required byliberal multiculturalism. Thus, respect for the Rule of LawL is a necessary condition of liberal ulticulturalism. And, if the Rule of Law expresses part of what is involved in the ideal of liberal neutrality, so too liberal multiculturalism may be understood accordingly

Law as Power: Two Rule of Law Requirements

Abstract. ‘Law as power’ is a neglected topic in contemporary analytical jurisprudence. Attention has been paid, from Hart (and Kelsen) onwards, to normative powers. ‘Brute’ social power, however, and law’s relation to it, are, in post-Hartian jurisprudence, largely overlooked. The subject of this paper is the shape social power takes when the rule of the law is envisaged as an ethico-political ideal—I discuss, that is, the Rule of Law as a specific mode of the exercise of social power, and what is valuable in it. I concentrate on two Rule of Law requirements, consistency (i.e., the avoidance of conflicts) and compliability (i.e., conformity to the ‘ought’ implies ‘can’ principle). They contribute, I argue, to defining a distinctive mode of social power, one that shows respect for its subjects. Power can be effectively exercised by systematically flouting these two desiderata. Consistency and compliability are required, however, if the law is to treat its subjects as autonomous, responsible agents. These two requirements, then, illustrate a threefold conclusion: Rule of Law power is public, rational (i.e., power for rational subjects), and non-paternalistic

Hart’s blind spot. The missing piece in The Concept of Law

Al inicio de El Concepto de Derecho, Hart sugiere una asimilación errónea entre conducta que es «no opcional» y conducta que es «obligatoria» (i. e. conducta que o es forzada o sometida a una obligación). Esta asimilación vicia el argumento del libro en su conjunto, llevándole a Hart a descuidar las diferentes vías en las que el derecho monitorea, corrobora o constituye relaciones de poder. Es cierto y evidente que en The Concept of Law la atención se dedica a los poderes normativos, legales. Sin embargo, el poder social bruto, y las relaciones del derecho con él —el papel del derecho como una pieza en la maquinaria de los poderes sociales— están ampliamente ignorados. Éste es, de alguna manera, el ángulo muerto de Hart. Enuncio algunas de las vías, aparte de la coerción u obligación, en las que el derecho puede servir, corroborar o ser un instrumento de poder social. También muestro que el tratamiento de Hart de las relaciones entre el derecho y el poder político, en The Concept of Law, es insatisfactorio. Tanto su reconstrucción de la surgimiento ideal de un sistema jurídico desarrollado y el argumento que sustenta «el contenido mínimo del derecho natural» presuponen la idea de un grupo social en el que no subsisten relaciones de poder.At the beginning of The Concept of Law Hart suggests a mistaken assimilation between conduct that is «non-optional» and conduct that is «obligatory» (i. e. conduct that is either coerced or subject to an obligation). This suggested assimilation vitiates the argument of the whole book, leading Hart to neglect the different ways in which the law typically tracks, corroborates or constitutes power relations. It is true that, famously, attention is paid, in The Concept of Law, to normative, legal powers. Brute social power, and law’s relation to it —the role of law as a cog in the workings of social powers—, however, are largely overlooked. This is, in a way, Hart’s blind spot. I list some of the ways, other from coercion or obligation, in which the law may happen to serve, corroborate or be an instrument of social power. I also show that Hart’s treatment of the relations between the law and political power, in The Concept of Law, is unsatisfactory. Both his reconstruction of the ideal genesis of a developed legal system and the argument supporting a «minimal content of natural law» presuppose the idea of a social group in which no power relationships subsist

Law, Plans and Practical Rartionality

There is, according to many contemporary jurisprudential theories, a tight relationship between law and practical rationality: the law gives us, or at least it purports to give us, reasons for action. In his book, Legality (2011), Scott J. Shapiro puts forward what at first glance appears to be a new view in this vein. Shapiro calls it the “Planning Theory” of law; it provides an account of what the law is in terms of a particular kind of reasons: plans (a notion moulded, in his work in the philosophy of action, by Michael E. Bratman). In this paper, I provide a reconstruction of the Planning Theory as a view of the relationships between law and practical rationality, and I point to some fundamental issues which, when considered in this light, the theory leaves open, or which seem to raise trouble for it

The Indian Removal Act: Jackson, Sovereignty and Executive Will

From King Andrew I to Old Hickory, Andrew Jackson had no shortage of nicknames symbolic of the opposing opinions of the president responsible for the forced removal of all Native peoples from the American South. While on its face the Indian Removal Act of 1830 appears to be little more than a racist executive order purporting large-scale land theft, the Act was also a manifestation of executive power and competing constitutional interpretations of sovereignty. In using his presidential authority to demand Indian removal, Jackson not only restructured national Indian policy, but further challenged both the power balance between state and federal government. Congressional opinions on the Act’s legality depended on opposing beliefs regarding proper constitutional reading of sovereignty. Jackson’s fickle enforcement of Indian laws further accentuated the ultimate authority of executive will. The Indian Removal Act’s narrow passage and enforcement in the face of judicial objection exemplified and aroused fundamental debates over sovereignty in American federalism and the actual ability of checks and balances between the branches of government

The Santa Fe Expedition’s Impact on Texas Annexation

The American Southwest to this day conjures images of burly pioneers and freedom beyond the bounds of established civilization, a unique spirit that harkens back to the era of the Lone Star Republic of Texas. Not only was the state once its own sovereign nation, it gained independence from Mexico through raising a true civilian army compromised overwhelmingly of the classic frontiersmen, live-off-the-land Texan that made up the new nation’s population. While depictions of the quintessential Texan against the promotion of its vast lands ripe with unhindered opportunity drew masses of Americans to Texas, the propaganda hid a web of political maneuverings and agendas within Texas politics and between the budding nation and the United States. Behind the changing leadership laid vastly different visions for the future of Texas as a potential U.S. state and the possibility of Texas remaining independent became a grave possibility given the turbulent sectionalism in the states over slavery. It wasn’t until the failed expedition along the Santa Fe Trail, which represented an attempt at growing as an independent nation, exposed the true political climate of the Texas government and caused Texas to move beyond being merely a question of slavery expansion in the U.S. While the explosion of American sectionalism and slavery debates halted annexation plans for Texas, the Santa Fe Expedition ultimately reaffirmed the U.S.’s need for Texas statehood in the interest of protecting westward expansion

Hart's blind spot : Il tassello mancante in "The concept of law"

Título del seminario: "50º aniversario de The Concept of Law"In apertura di The Concept of Law (d’ora in avanti, CL) Hart osserva: "the most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional, but in some sense obligatory" (1961, p. 6; cfr. anche p. 80: "where there is law, there human conduct is made in some sense non-optional or obligatory"). Questa osservazione appare innocua. Ma c’è un trucco. L’osservazione suggerisce un’identificazione: l’identificazione fra l’essere una linea di condotta ‘non-opzionale’ e il suo essere ‘obbligatoria’. E questa identificazione è fallace..