Can We Please Stop Doing This? By the Way, Postema was Right

While legal philosophy has its own unique set of questions and problems, one activity it shares with many other areas of philosophy is the urge to find the essence of 'law'. Whether expressed as 'essence', 'necessary and sufficient' or 'nature', the enterprise is finding the features of law that set it apart from other normative phenomena. Many philosophers have abandoned the search for the essential features of many things. The conventional wisdom now seems to be (roughly) that the world divides into natural kinds and other (social or artefactual) kinds. Legal philosophers have not given up the search for the essence of law. In this way, they are rather different from philosophers in many other areas of the discipline. In this chapter, I will consider three attempts to identify the essence or nature of law. I will argue that each attempt fails for different reasons. If these attempts to identify the essence of law fail, what are we to make of these failures? Are they simply three different failed attempts or do they indicate something more? I will then consider Gerald Postema's effort to point to a different way of thinking about law and what legal philosophers ought to be doing when we do jurisprudence. Postema's work is a model of how to do legal theory: it is methodologically sophisticated and it solves problems not otherwise amenable to resolution

Interpretation in Law

Interpretation is a familiar feature of law and legal practice. For some legal theorists, interpretation is a central - even foundational - aspect of law. I argue that interpretation is a parasitic activity in legal practice. In other words, I want to disagree with those who make the case for interpretation as a basic or fundamental feature of law. While interpretation is certainly an important element of legal practice, it is an activity that depends upon existing and widespread agreement among legal practitioners with respect to most features of legal practice. In short, interpretation is not the firmament of law. The need for interpretation arises from the firmament of praxis. That is, interpretation in law arises from established forms of action that all participants recognize and employ whenever they make, appraise, and adjudicate claims about the state of the law. Interpretation is grounded in a distinct form of discursive action that we recognize as legal in nature. Thus, before we can truly understand the role of interpretation in law, we must first explicate the particular form of understanding we identify as legal. Only with a clear view of the nature of understanding in law can we then properly explicate the nature and scope of interpretation in law. When we look at how participants in law engage in interpretation, the activity can best be described by three general principles. These principles capture what it is that lawyers do when they, of necessity, interpret the law

The New Leviathan

Reputation in any field is an elusive phenomenon: part notoriety, part honor, part fame, part critical assessment. Even in legal scholarship it has an uneven, unpredictable quality. It is hard to imagine a book by a law professor that has had more immediate impact on world leaders than Philip Bobbitt\u27s The Shield of Achilles. Much of the national-security strategy devised by the U.S. administration after the September 11 attacks expresses ideas Bobbitt conceived long before; and from a different point on the political spectrum is the Archbishop of Canterbury, whose televised nationwide address in January explicitly took the book as its text. The British Foreign Secretary, the E.U. Commissioner for External Relations, and the international security advisor to the Secretary General of the E.U. have all made speeches that draw on Bobbitt\u27s ideas. In January of 2003, the Guardian newspaper stated that among [the] powerful, one book has become required reading. This established British liberal voice echoed the suggestion by the American conservative National Review that [t]his book - with its masterly reappraisal of modern history and subtle el.ucidation of today\u27s geopolitics - should be on every desk in the State Department, and its conservative companion the Weekly Standard recommended that it should become required reading not only in the academy but for the military and civilian decision-makers of the industrialized world. For all this, Bobbitt\u27s book is likelier to have more influence than renown; as with his earlier works, which have reshaped a number of fields, he remains, in the U.S. at least, the most influential person of whom you have never heard

The Limits of Empiricism: What Facts Tell Us: Comments on Daniel Keating\u27s \u27Exploring the Battle of the Forms in Action\u27

The conventional legal academic wisdom about empiricism is that empirical information is by-and-large a good thing, that we need more of it, and that empirical analysis is preferable to many scholarly alternatives now on offer in the law review literature. I do not dispute the proposition that, all things considered, empirical information is a good thing. What I question is the notion that empirical information necessarily leads to knowledge. Put differently, it is one thing to marshal the facts, and another to know what to make of the facts. I shall raise these points both in a general way and with specific reference to Professor Keating\u27s fine contribution to the literature on U.C.C. section 2-207. I applaud Professor Keating\u27s efforts to uncover the facts surrounding the implementation and effectiveness of section 2-207. I agree with his observation that much of the literature in commercial law, and on section 2-207 in particular, simply assumes a worldview that may or may not be consistent with the way the world is. That said, I want to suggest that it takes more than knowledge of the way the world is to know what to do with section 2-207. While I disagree with some of Professor Keating\u27s conclusions, I believe he makes a valuable contribution to the continuing discussion of one of the most nettlesome provisions of the U.C.C. Finally, I shall comment briefly on the latest revision of section 2-207, which looks quite promising