Apr 3, 2026 Sean Coyle
The Nature of Law is an insightful and engaging book that challenges almost every touchstone of modern jurisprudence. Proceeding from the thesis that laws must be understood after all as commands rather than rules, the book defends the thesis that law itself must be understood by reference to the common good. The view that the law consists of commands does not take us back to the Austinian jurisprudence that preceded H. L. A. Hart’s (the author maintains that John Austin’s theory is indeed radically defective), but challenges the modern consensus that Hart’s conception of law as a system of rules is really the advance it is supposed to be.
The book’s central sections deal with the question of whether there is an obligation to obey the law, not (as Joseph Raz maintains) merely because the law consists of reasons for action that apply to the subject anyway (P. 199), but because the law secures the common good in ways that cannot be successfully contemplated or advanced by multitudes of individuals, even if those individuals steadily wish to act for the common good. This thesis is linked to that of command, for the author argues that commands generate genuine obligations, and do not simply, as Hart suggested, oblige (Pp. 93-96, 204). In fact, it is Hart who runs into trouble, for his argument is based on the idea that rules are to be theorised as practices, but these can be shown to lack a normative element.
Here, the author seems to run aground, for Hart in this sense follows the lead of Aristotle and Aquinas, in supposing that a function of law is to coerce un-virtuous people to act virtuously until they come to love virtue and act for its sake. The un-virtuous can be described as engaging in a practice, yet continue in that practice only in order to avoid punishment, or merely ‘conform’, and not because they have ‘internalised’ the values that structure the practice. But practices can be moral, too: the virtuous also engage in a practice (in extensional terms, the very same practice as that of the un-virtuous), but they do so because they deem the practice to be good, even if only good on the whole. Furthermore, is not ‘acceptance’ normative? (P. 62.) Whatever the relative merits of commands vs. rules, the central thesis of the book is, to repeat, that law in the proper sense is orientated to the common good. Individual laws that do not serve the common good “remain law, but [weigh] down the system and potentially erode its legitimacy” (P. 15). It is unfortunate that the book does not offer a finely calibrated account as to the various ways in which a legal rule erodes the legitimacy of the system, the significance of these, and at what point legitimacy disappears under the weight of evil laws. The only worked-out example given is that of Nazi law, which is well-trodden and too well-known to offer any substantial new insights (P. 140).
Having progressed from the controversy of commands vs. rules, the central chapters of the book concern justification (Ch 3) and authority (Ch 4). Both of these chapters critically discuss Raz’s jurisprudence, challenging his ‘service’ conception of authority. Chapter 4, which is the longest in the book at over 90 pages (Pp. 185-278), is the one about which I have least to say. It is somewhat repetitious and too long for even the most eager reader to maintain focus. But one thesis did stand out. The author asserts, like John Finnis and Robert George, that the law, in seeking the common good, consists in settling coordination problems (P. 196). This established thesis should be given up. For the foundational projects of the law in fact pertain to justice (e.g., in accidental and intentional harms, in transactions and rights of ownership) and in fairness (procedures and due process, delegated authority and legislation, and so on), and neither of these projects essentially aims at coordination.
There is much else in the book that is of interest, but I have confined myself here to what is most original in the author’s argument. I want to close this review by picking out a single sentence that has, in fact, great significance for the author’s project, implying as it does a methodological assumption. Stating that we need an account of why particular standards count as law, he asserts: ‘Any analysis requires a unitary definition at some stage’ (P. 131). Such a viewpoint, which drives many legal theories and not just the author’s, could itself be challenged on the ground that the concept of ‘law’ is one structured by family resemblance at most, there not being a single archetype or shining example against which all legal systems or practices are judged (for indeed we can ponder whether all law-practices are systematic above and beyond being consistent). The very idea that a unitary definition is possible in legal theory is one that should not be automatically assumed.
In conclusion, there is much of interest in this book, to agree with or dispute. It is a testament to the book’s originality that either of these eventualities will be extremely profitable.
Mar 4, 2026 Izabela Skoczen
In the article, Lawful, But Not Really: The Dual Character of The Concept of Law, Brian Flanagan and Guilherme de Almeida challenge the traditional divides in jurisprudence as to the definitions of the concept of law as well as the concept of legal validity. The article intends to offer a novel, third-way approach between the two traditionally most populated camps in legal philosophy, namely positivism and natural law theory.
The novelty of the article does not consist only in its theoretical appeal, but also in adopting a relatively new methodology, namely the methodology of experimental jurisprudence (“xjur”). Xjur seeks to shed new light on traditional jurisprudential questions by employing the methodology of the psychological, sociological, or cognitive sciences. The methods include, among others, massive online surveys, corpus studies (analyzing a large collection of texts), neuroimaging, or decision-making in immersive virtual reality. Using these methods permits researchers to achieve a more accurate grasp of how people understand concepts such as, for example, intention, causation, rule, law, or reasonableness. Moreover, using such methods permits us to end speculation as to, for example, what the linguistic or conceptual intuition of a certain population is. See SEP entry on experimental jurisprudence.
The Authors employ the methodology of massive online surveys in a very rigorous way. They first preregistered their hypotheses, which consist of placing these hypotheses on an online platform that makes it impossible to alter them after running the experiments. The Authors performed a series of attention and comprehension checks, ensured that no participant would take the study twice, and that participants would be native speakers of the language of the survey.
Flanagan and Almeida argue that the concept of law is a dual character concept. But what is a dual character concept? Imagine that someone paints with a brush on canvas an incredibly kitsch landscape. There is a shallow, superficial sense in which it is art, as it is a painting. However, since the painting is empty and does not convey much of a message, one could say that it is not really, or truly, art in a deeper sense. By contrast, think of conceptual art – it may not be a painting on canvas, but it might convey a very powerful message. Thus, one could say that there is a superficial sense in which it is not art, yet in a deeper sense, this is truly art.
Analogously, think of the concept of a scientist: if someone performs a lot of experiments, yet has no curiosity or interest in the truth, are they a true scientist? Or only a scientist in a superficial or shallow sense? By contrast, think of a person who never performed any experiments, but has some innate, avid curiosity for the world. There is a sense in which this person is not a scientist, yet there is also a sense in which this person is a true scientist.
Flanagan and Almeida argue that the concept of law also has a dual character, just like the concept of art or the concept of a scientist. For example, imagine that a legislature enacts an incredibly unjust and immoral statute that enables slavery. You could say that there is a shallow sense in which this is a law as it was enacted by a legislature, but it is not a real or true law, because it is so immoral. Conversely, if slavery was never banned in a country, one could say that there is no law against slavery in a superficial sense, but slavery is not really or truly lawful.
The general idea is that certain concepts have two sets of application criteria. First, some descriptive, superficial criteria of application and, second, some normative or deep criteria. Flanagan and Almeida argue that, for the concept of law and the concept of legal validity, the superficial criteria could be, for instance, enactment by a legislature, while the deep criteria may be certain values, rights, or morality, be it substantive or procedural.
Such a manner of conceptualizing law presents a third way between the two biggest traditional jurisprudential camps of defining the concept of law, namely positivism and natural law. There are many varieties of positivism; however, roughly speaking, a positivist would claim that there is no necessary connection between law and moral value. Thus, a law in a superficial sense, but not in a deep sense, may be a valid law (though Hart acknowledged the need for a minimum necessary moral content of law; on the blurred divide between positivism and natural law theory, see footnote reference). Conversely, a law not in the superficial but in the deep sense may not necessarily be a valid law.
By contrast, the proponents of natural theory doctrines would, roughly speaking, claim the opposite: a law in a shallow sense, but not in a deep sense, is not a law, while a law in a deep sense, but not in a shallow sense, may well be a valid law. This is a much simplified picture; I refer the reader to Flanagan and Almeida’s excellent paper for more nuance on the different stances on the concept of law. The Authors also discuss different candidates for the values underlying a dual character concept of law, one of them being Fullerian procedural morality.
The central question that remains is whether this stance is shared by the wider population, or is it just philosophical speculation? Flanagan and Almeida perform two preregistered experiments, arguing that the dual character intuition is indeed shared by a substantial part of the population. They tested scenarios in which a ban on a morally neutral or immoral behavior was either lifted or the behavior was never banned. In such cases, people tend to agree with the statement that “there is a sense in which [conduct-type] is clearly lawful, but ultimately, if you think about what it really means to be lawful, you would have to say that [conduct-type] is not lawful at all.” Check out their paper for more riveting details on the concept of legal validity!
Cite as: Izabela Skoczen,
What is Real Law?, JOTWELL
(March 4, 2026) (reviewing Brian Flanagan & Guilherme de Almeida,
Lawful, But Not Really: The Dual Character of the Concept of Law, 43
L. & Phil. 507 (2024)),
https://juris.jotwell.com/what-is-real-law/.
Feb 2, 2026 Brian Bix
Gregory Klass,
What Might Contract Theory Be?, in
Understanding Private Law: Essays in Honour of Stephen A. Smith 181 (Evan Fox-Decent, John C. P. Goldberg & Lionel Smith eds. 2025).
Gregory Klass’s article, What Might Contract Theory Be?, was published in the collection, Understanding Private Law, a volume honoring Stephen A. Smith, the eminent Contract and Private Law Theory scholar who passed away far too young (shortly before this volume’s publication). Klass’s article focuses on an influential discussion in the first chapter of Smith’s influential work, Contract Theory. In that chapter, Smith sets out the criteria he believes should be used to evaluate theories of contract law. In particular, Smith offers four criteria: fit, coherence, morality, and transparency. In Klass’s discussion, he asks good, probing questions of each of Smith’s categories and the way that Smith applies them. (Pp. 183-89.) However, Klass’s most important challenge may be the following, general one: should a theorist of contract law (or other doctrinal areas of law) be essentially an outside spectator to the practice, or essentially a (kind of) participant in the practice?
Whether theorists should be (or should treat themselves as being) participants or observers has been an active dispute for some time in the related area of general theories about the nature of law. Many of the best-known theories of law take primarily an observer’s attitude towards the subject – law, legal norms, the legal system. At the same time, at least since the work of H. L. A. Hart, they have simultaneously given significance to the “internal point of view,” the fact that some of those in the practice accept the law (as giving them reasons for action). By contrast, Ronald Dworkin presented a theory of law, and an approach to theorizing about law, in which the theorist is a participant in the practice, and “no firm line divides jurisprudence from adjudication or any other aspect of legal practice.” Hart’s response to Dworkin on this matter was simple: that whatever value there might be to a theory built entirely from an insider’s perspective, “there is an important place for general and descriptive jurisprudence”.
As Klass reports, Smith, in Contract Theory, takes Hart’s position for contract law theory: endorsing incorporating the internal point of view (P. 182), but combining this with a participant’s perspective. By way of critique, Klass argues that, at least for common law jurisdictions (like the United States), where judges have both the authority and the responsibility to alter and improve the law while resolving individual disputes, the theorist should take the participant’s perspective, not a spectator’s perspective. (P. 190.) The judge and the lawyer considering a question of contract law – in particular, if it is a question of first impression or if there is a reasonable argument for revising existing law – will argue in terms of a “rational reconstruction” of precedent. Rational reconstruction takes the prior decisions and re-characterizes them in a way that makes them as good as they can be relative to the justifications of that area of law, or relative to the justifications for law generally. Such rational reconstruction, it can be seen, requires, or at least benefits from, the sort of resources one could find in a theory of contract law: views about the overall objectives of contract law as well as the intermediate-level objectives of various contract law doctrines and principles. So the theorist of contract law effectively is doing the same thing as the advocate or the judge: “participa[ting] in the shared project of using available materials to achieve the best possible law of contract”. (P. 191.)
How we should best understand and evaluate theories of doctrinal areas of law remains an underdeveloped area of legal philosophy. Stephen Smith offered an important early analysis, and Gregory Klass has now contributed valuable refinements to Smith’s views. But Klass’s article also raises new questions. For example, if Klass’s argument is tied to the nature of common law decision-making, does that mean that one might (should) have an entirely different theory of contract law for civil law legal systems?
Cite as: Brian Bix,
Theorizing for Insiders and Outsiders, JOTWELL
(February 2, 2026) (reviewing Gregory Klass,
What Might Contract Theory Be?, in
Understanding Private Law: Essays in Honour of Stephen A. Smith 181 (Evan Fox-Decent, John C. P. Goldberg & Lionel Smith eds. 2025)),
https://juris.jotwell.com/theorizing-for-insiders-and-outsiders/.
Jan 4, 2026 Kenneth Himma
Luka Burazin,
Naturalized Jurisprudence, in
Elgar Concise Encyclopedia of Legal Theory and Philosophy of Law, (John Linarelli ed.) __ (forthcoming 2026), available at
SSRN (Nov. 11, 2024).
Luka Burazin’s Naturalized Jurisprudence is an elegant discussion of the various movements to naturalize legal philosophy. Burazin differentiates between substantive and methodological naturalism, further distinguishing two types of substantive naturalism: “Ontological naturalism is a view that philosophy should accept as real or actually existing only (in a broad sense) natural things, properties, entities and phenomena (i.e., those identified through the methods of empirical sciences)…. Semantic naturalism is the view that a philosophical analysis of a concept must show it to be ‘analyzable in terms that admit of empirical inquiry’” (P. 1).
In contrast, he explains methodological naturalism as “the view that philosophical theorizing should abandon armchair theorizing on the basis of philosophers’ intuitions and common-sense beliefs (‘truisms’), thought experiments (hypothetical situations), and a priori conceptual analysis, and use instead the (empirical) methods of successful (natural and social) sciences and the scientific style of explanation.” (P. 1.)
It is worth noting at the outset that ontological naturalism, as stated here, appears to be inconsistent with the existence of propositional and non-propositional abstract objects, such as law, sets, and objective moral rules, which our linguistic practices assume exist, because picked out by noun-terms. If ontological naturalism is concerned to explain the world that we construct with our conceptual, mathematical, and evaluative practices, it seems to be a non-starter from the outset. If it is concerned with identifying some mind-independent truth, it seems unequipped to do so.
While an ontological naturalist might, as Burazin points out, explain law in terms of human behaviour and mental states, there are two problems. First, since mental states are not publicly observable, an ontological approach would have to rely on verbal testimony that describes their mental states, evidence that might not always be available. Second, it is not clear that law and its associated practices can be adequately explained without relying on abstract non-naturalistic objects, like norms and systems.
Burazin goes on to characterize American Legal Realism (ALR) as a form of methodological naturalism that “advocates replacing conceptual and normative (justificatory) theories with empirical and descriptive theories (thus changing the goals of theoretical inquiries), or normative naturalism, which aims to regulate a certain human practice (e.g., of acquiring knowledge or adjudicating) but requires that normative theories be based on empirical findings on which normative recommendations can actually be followed by their addresses and can actually produce the desired effects” (P. 2).
In his view, ALR advocates abandoning normative theories of how judges should decide cases with empirical studies of judicial behavior that do no more than explain the judges’ decisions in terms of their beliefs and inferences they make.
Of course, this seems to require that we utterly abandon normative theorizing about legitimate judicial decision-making. If the goal of theorizing about law is to understand the notion as we construct it, which comports with a methodological naturalist approach, then a replacement naturalism of this sort will fail to explain the most important dimensions of our shared lives together – our normative and evaluative practices. While, I suppose, those practices might be objectively mistaken (assuming such talk can be explained within a naturalistic framework), not being able to explain or even address them comprehensively greatly diminishes the utility and value of a naturalistic explanation.
Related to this line of thought, Burazin considers Leiter’s proposal “to abandon a priori conceptual analysis of the concept of law and turn jurisprudence into an abstract and reflective part of empirical social sciences of law, with the main task of jurisprudence being to offer ‘greater reflective clarity about the concepts invoked in the most powerful explanatory and predictive empirical social-scientific research on law” (P. 4).
One concern about Leiter’s proposal is that it seems to require abandoning all a priori analysis, leaving us no way to explain logical and mathematical reasoning – even if it countenances the existence of norms. Deductive reasoning is a matter of evaluating inferences under certain standards of reasoning and is hence a priori in character.
None of this should be taken to deny, of course, the altogether sensible suggestions that empirical experimental methods are useful in clarifying the content of our concepts – especially if one takes the position that the only concepts to which we have epistemic access are the ones that are manufactured by our shared practices for using words.
Sensing these issues, Burazin proposes a “conceptually methodological naturalism” that “retains the conceptual goals of traditional jurisprudence … but requires that conceptual analysis be based on the empirically ascertained usage of the relevant words” (P. 5).
Indeed, this is the very template that Hart and Raz adopted, as both were concerned with analyzing our ordinary concept of law. As Hart put this important point at the beginning of the Preface to The Concept of Law:
More over, at many points, I have raised questions which may well be said to be about the meanings of words.… Many important distinctions, which are not immediately obvious, between types of social situations or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself left unstated.
Similarly, as Raz explains:
The notion of law as designating a type of social institution is not … part of the scholarly apparatus of any learned discipline. It is not a concept introduced by academics to help explain some social phenomena. Rather, it is a concept entrenched in our society’s self-understanding…. It is part of our self-consciousness, of the way we conceive and understand our society…. That consciousness is part of what we study when we inquire into the nature of law.
It is hard to do justice to Burazin’s essay with so few words, but I can say this: in six pages, he manages to provide an accessible, though philosophically sophisticated, explanation of many different naturalistic theses. Though many of these positions remain contentious, as my discussion of them suggests, this is a well-written, elegantly organized discussion of a topic that has many dimensions. It is a fantastic starting point for anyone – theorists, students, and laypersons – interested in understanding the naturalistic movement.
Cite as: Kenneth Himma,
What is “Naturalized Jurisprudence”?, JOTWELL
(January 4, 2026) (reviewing Luka Burazin,
Naturalized Jurisprudence, in
Elgar Concise Encyclopedia of Legal Theory and Philosophy of Law, (John Linarelli ed.) __ (forthcoming 2026), available at SSRN (Nov. 11, 2024)),
https://juris.jotwell.com/what-is-naturalized-jurisprudence/.
Nov 21, 2025 Julieta Rabanos
What lies behind one of our most engrained and persistent assumptions in law – the existence of a specific kind of intention underlying the utterances of an authority?
This is the question that Poggi and Ferraro endeavour to address in this article, and in doing so, they embark on a particularly complex enterprise: to show that what we call “legislative intent” is a deception. Or, put differently: that what we call “legislative intent” does not exist as such, but (only) as a construction by the interpreters; and therefore, that the invocation of “legislative intent” to justify a specific interpretation of a legal text is a sleight of hand that conceals – and, even more, amplifies – the interpreters’ discretion. And all this is done under the guise of objective linguistic rationality and strict respect and deference for the legislator’s decisions.
Poggi and Ferraro argue that (1) the “Ideal Legislator Dogma” (ILD) and the “Competent Speaker Model” (CSM) are either “misleading descriptions or prescriptive models” related to legislative intent and the activity of interpretation;” that (2) both of these approaches rely on forms of rationality that are claimed to be value-neutral, but this is not the case; and that (3) there is always an evaluative choice involved in whether to assume the rationality of legislation or ascribe rationality to legislators, and which type of rationality (among several possibles) is assumed or ascribed. (Pp. 464, 479.)
The so-called ILD claims that legal materials should be interpreted on the assumption that an ideal, rational legislator has produced them. (Pp. 466-470.) Poggi and Ferraro critically analyse several approaches to identifying the relevant features of rationality, including the question of whether these approaches are prescriptive or descriptive, and the consequences of conceiving them as one or the other. One such approach is C.S. Nino’s exploration of the “Rational Legislator Thesis”: a prescriptive model in disguise (ideological fiction), assuming that existing legal norms have been enacted by a rational legislator that is singular, perennial, all-comprehensive, cognizant, finalistic, omniscient, omnipotent, just, consistent, exhaustive, economical, operative, and precise. (P. 467; Nino 1989, Pp. 77-95.) This approach, however, has ethical assumptions that are too strong – even behind the apparently more ethically neutral features – and the very choice of considering “legislator” as a “theoretical term” is not ethically or politically neutral. (P. 468.) Another approach is L. Nowak’s conception of the “Rational Legislator quasi-hypothesis”: an assumption in legal scholarship regarding legislative rationality, which cannot be disproven but is used to explain the behaviour of real lawmakers and to provide guidance in ascribing meaning to statutes. (P. 468.) Here, the rational legislator is the one who, in the light of certain knowledge possessed at a certain time, chooses the most effective legal means to achieve their goals. (P. 468.) Even if less ethically committed, as it does not include views on moral acceptability of goals or the plausibility of the premises of legislative reasoning, this second approach is based on some ethical assumptions: for instance, it rules out legislative dishonesty and the possibility of enacting inconsistent directives as means to achieve a certain goal. (P. 470.)
Behind these approaches, warn Poggi and Ferraro, hides one of the strongest and most pervasive assumptions: that legislative communication has a cooperative nature – i.e., that legislative authorities (propose to) engage in cooperative exchanges with other legal authorities and citizens. And this assumption, for the authors, has survived the seeming abandonment of the ILD and returned to us in pog form: behind the so-called CSM.
The CSM claims that legal materials are to be interpreted in accordance with the communicative intention that a speaker who follows all the relevant linguistic rules would have expressed through these materials. (Pp. 471-479.) Its critical analysis is probably the most developed part of the paper, as Poggi and Ferraro again explore several approaches connected to the CSM, whether they are descriptive or prescriptive, and the consequences of subscribing to them.
One of the consequences is that endorsing the “Competent Speaker Thesis” allows for endorsing an intentionalist account of legal meaning, while avoiding giving an answer to the known problems of collective legislative intent. This is possible because, here, legislative intention is the “single intention that a competent speaker would have expressed through the legal provision at hand according to our common linguistic rules” – both semantic and pragmatic, with the latter filling the gaps to determine the full meaning of a provision when the former fails to do so. (Pp. 471-72.) Moreover, this promises us objectivity and neutrality: to correctly interpret a legal text, we need not involve moral or political evaluations, nor invoke the fiction of a godlike legislator. We just need to discover what the single, unique intention of the competent speaker – according to the semantic and pragmatic rules of our language – would have been. (P. 472.)
Is this true, however? Poggi and Ferraro argue that it is false, and the explanation is simple: when dealing with pragmatic rules, which are context-sensitive, the CSM seems to assume that those contexts are fixed, transparent, and thus purely discoverable. However, the authors claim, those contexts are neither fixed nor transparent; and thus – especially within legal settings – they are always a product of contentious reconstruction that involves subjective evaluations of reasonableness by the interpreters (P. 475). This way, not only the same context – as it is opaque – might yield different interpretative results, but different reconstructions of the relevant context might also yield different interpretative results. (Pp. 472-73.)
The authors take care to further analyse different recent proposals that could fit within the CSM, which offer different reconstructions of the intention of the competent speaker. For example, Goldsworthy’s objective communicative theory – which claims that legal texts are interpreted by judges as having only one possible meaning, based on an objective legislative communicative intention – is criticised as being descriptively false and conceptually wrong in several ways (Pp. 473-476), including that this activity neither involves only considerations of linguistic rationality nor usually leads to (only) one possible or plausible meaning; that Goldsworthy’s conception of the relevant context of legal interpretation as involving the whole corpus iuris presupposes a godlike legislator (not just a mere competent speaker) and admits of several ways of coherent reconstruction (so yields several plausible interpretations); and that interpreters never work with the whole corpus iuris but only with a cut of it – one that involves choice and does not guarantee a unique outcome.
Poggi and Ferraro also consider approaches that reconstruct the intention of a competent speaker on grounds beyond linguistic rules and the relevant context, including reference to substantive reasons. Ekins’ proposal of including also the point of legislation, i.e., to realise the common good, has the problem of either not having exact agreement on what the content of the common good is or having those moral considerations fall outside of what can be determined according to relevant linguistic rules or context. (P. 476.) Prescriptive models for identifying the correct interpretative solutions, which include references to reasons that support those solutions or that ground the decision of the legislator (e.g. Macagno, Walton & Sartor 2018, Capone 2016), present the problem of shifting from trying to infer communicative intentions to trying to infer reasons, and also tend to collapse what the speaker intends to communicate with her substantive reasons for communicating it. (P. 477.) Poggi and Ferraro’s point here is strong: “pragmatic rules do not shed light on substantive rationality,” because “they encode a purely linguistic rationality that can coexist with substantive irrationality and even with some forms of logical irrationality”; “through language we can, and do, communicate very different things, including our unreasonableness” (P. 477-78).
Finally, Poggi and Ferraro consider one approach that seemingly reconstructs the intention of the competent speaker in a minimal and neutral way. (Pp. 478-79.) Poscher’s proposal contemplates the assertion that a single communicative intention is ascribed (through procedural voting rules) to each individual legislator, and that such communicative intention is equivalent to the one of a competent and diligent legislator – identifiable through semantic meaning, factual and regulatory context of the text, and context and materials of the legislative process. Poscher recognises that there might be no single answer in this endeavour for several reasons, including semantic indeterminacies, specific idiosyncrasies of particular legal systems and specific legal culture determinations of the shape of the idealised legislator, and that in such cases legal construction comes into play (a normative, heuristic activity aimed at amending regulations, which is justified by appealing to the communicative intentions of a fictive legislator). However, as Poggi and Ferraro point out, this proposal either is unable to give a solution to interpretative problems (when it strictly maintains minimality and neutrality) or it kicks the door open for strong interpretative discretion (when appeals to the fictive legislator, who in the end is nothing but the ideal, rational legislator). (P. 479.)
What is left, then, after lifting the veil of legislative intent? Maybe the bare bones of a reality that sometimes we – for an array of reasons, ranging from prudential to moral – tend to ignore, dismiss, or forget. One of these reasons might be a strong support of some substantive legitimacy principle of authority, such as democracy, that requires us to normatively support a particular division of normative labour among legal authorities, which might not be descriptively reflected in the world. Another reason, one Poggi and Ferraro point out in the very end, is the fact that our legal systems are such a heterogeneous, disjointed, and ill-fitted body of texts (from different origins, times, and ends) that, in order to be useful, it needs to be interpreted as if it were in some sense rational. (P. 481.) However, even if it might be more comfortable, we may be losing too much by choosing to avoid looking through the veil of legislative intent. We lose the clarity that legislative rationality is not something there to be “discovered,” but it is always constructed, and that it is best conceived of as the product of a legal culture – of the combined and conflicting efforts of jurists, lawyers, judges, and legal authorities. We also lose the clarity that the type of interpretative discretion that we may want to eliminate hides itself behind dogmas or models that postulate one rational or competent speaker or reader with one single, identifiable, purely discoverable intention. And, with losing the clarity that all of this involves choices and thus value judgements, we lose the capacity and opportunity to require that every single decision made by interpreters be publicly and adequately justified without resorting to fictions of neutrality and discovery, behind which value judgements and ascriptions hide untouched and unseen.
Poggi and Ferraro are naturally far from the first to point this out – and I surely hope they will not be the last. Moreover, several relevant questions have been seemingly left out here from their considerations, such as whether the rationality assumption could even go further than written law, how all approaches (including theirs) reflect or not a particular theory of authority and division of normative labour, in which sense and to what extent – and to whom – law is useless if rationality (at least of legislation) is not assumed, the relationship between assuming the rationality of a legislator or of law, and so on. However, their article is a refreshing and sharp reminder of the theoretical importance of critically and openly discussing even our more ingrained assumptions, as well as the practical consequences and risks of failing to do so, or of failing to separate our prescriptive commitments from our descriptive assessment of reality.
Cite as: Julieta Rabanos,
The Veil of Legislative Intent, JOTWELL
(November 21, 2025) (reviewing Francesca Poggi & Francesco Ferraro
From the Ideal Legislator to the Competent Speaker: Uncovering the Deception in Legislative Intent, 15
Juris. 464 (2024)),
https://juris.jotwell.com/the-veil-of-legislative-intent/.
Oct 22, 2025 Barbara Levenbook
A philosophical anarchist believes that law cannot obligate. That means that it cannot impose a genuine obligation, which is a special kind of reason for action. In this article, Kenneth Ehrenberg makes the case that three popular theories about law, legal authority, or practical reason commit their proponents to philosophical anarchism. Though explicitly his discussion is limited to the three, there is enough in his arguments to show that it’s very difficult to avoid philosophical anarchism in your theory about authority, reason-giving, or the normativity of law. If you think that law’s reason-giving force comes ultimately from some non-legal source, you’ve embraced this form of anarchism.
Readers will not be surprised to learn that those who deny that law has practical authority, insisting instead that its authority is only theoretical, are philosophical anarchists. They acknowledge that law cannot create novel reasons for action. It follows that law cannot create obligations, either. It only provides reasons for belief. The big surprise is that natural law theory of the Mark Murphy variety falls into this category. The appeal of such a theory has long been that it vindicates the law’s normative language of rights and obligations. It does so by vindicating the intuition, held by many, that legal rights and obligations are real rights and obligations, and thus, genuine reasons for action. It might seem, then, that law – that is, human or positive law — creates such reasons. But Ehrenberg makes a persuasive case that, given the standard natural lawyer commitment to the unity of value, any genuineness in the obligation stems from pre-existing or background principles (of the natural law, of reason, or directly from God). (Positive) law does not, then, generate genuine reasons for action; and so, it cannot obligate. Something else is doing the work.
The third theory is about practical authority. On this theory, advocated by David Enoch, all practical reason-giving is a triggering of a dormant or a pre-existing conditional reason. Allegedly authoritative directives, such as those found in law, don’t produce practical reasons absent a pre-existing independent reason in a conditional form. That reason’s normativity, according to Enoch, ranges over the whole conditional. So law cannot create new practical reasons. Ehrenberg argues that Enoch’s detour through legitimate authority fails to help him. Enoch treats legitimate authority as creating a combination of different types of reasons, and since new reasons cannot be built from pre-existing reasons, law cannot create obligations.
But take heart, those in the “law provides genuine novel reasons” camp: there are ways not to be a philosophical anarchist. According to Ehrenberg, Mark Greenberg may escape philosophical anarchism. He may identify law and morality so closely that the creation of a legal norm is eo ipso the creation of a moral norm. Ehrenberg also argues that Joseph Raz can escape philosophical anarchism, largely due to the element of exclusionary reason Raz sees in authoritative directives. Ehrenberg suggests that the normativity of an authoritative directive comes not just from the dependent reasons that justify it, but from its role excluding acting on some contrary moral and prudential reasons. That exclusionary reason is created by the directive, and so, is entirely novel.
This last result, combined with Ehrenberg’s other arguments, seems to me to present an interesting paradox: a form of legal positivism is compatible with law being a source of novel genuine reasons to act, while the standard natural law theory, in both the weak and the strong version, is not. This is something to bear in mind if you think law makes a difference of a certain robust sort in practical reasoning.
As a last measure, you might want to challenge some of Ehrenberg’s arguments. But this will not be easy. Ehrenberg has anticipated many objections and countermoves. Perhaps your best bet would be to challenge his arguments’ assumptions about the individuation of reasons, as Ehrenberg admits. But you’d have to do this with a persuasive account of how to individuate reasons in hand. More precisely, you’d have an account of how the normativity they carry is attached. You’d have to argue that, when law requires a specific action that solves or makes salient a solution to a pre-existing problem, and this gives its subjects a reason to perform that specific action, its normativity does not come from any prior reason to solve that problem. And that gets us into territory most of us are ill-equipped to explore.
Sep 23, 2025 Jeffrey Pojanowski
Intentionalism in contemporary legal interpretation is unloved, at least in my United States. Textualists, purposivists, and dynamic interpreters disagree on much, but they tend to agree that any rich form of legislative intent is not a proper—or even possible—quarry for readers pursuing a statute’s legal meaning. At most, they will concede that legislative authors have the minimal intent to make law when voting on the authoritative text.
Yet a moment’s reflection raises worries about this consensus. Intentionalist legal and literary theorists contend, with plausibility, that all texts presuppose a communicating author; that is why you regard what you see on your screen as words, rather than stray marks that happen to fall into an uncannily familiar pattern. If that is so, and if legislative intent is out of bounds, we are either following statutes that have no author or whose authorship is attributable to the interpreter (who constructs the reasonable reader of legal English, the reasonable person pursuing reasonable purposes reasonably, or the chain novelist who makes the law the best it could be). Invoking authorless texts to impose damages, fines, jail, or death sentences is troubling. Treating the interpreter as the re-author, by contrast, raises worrisome problems about separation of powers and legislative supremacy. Hence, a kind of transcendental argument for the necessity of legislative intent.
But wishing does not make it so, and intention-skeptics have marshalled an army of arguments against legislative intent. We can stylize intentionalist challenges in three ways: (i) a “many minds” problem, which makes it hard, if not impossible, to aggregative individual legislators’ intentions around a particular problem; (ii) a “one mind” problem of attributing a single, intending subject somehow wafting up from the collective group like a Hegelian mist; and (iii) a “no mind” problem, when it is likely that nobody in the legislature even considered a particular question. So, are we at an impasse?
Perhaps, but perhaps not. Enter Stephanie Collins (Monash University), David Tan (Deakin University) and their 2024 article Legislative Intent and Agency: A Rational Unity Account. (When you consider Australian academics Professors Collins and Tan alongside Richard Ekins (a Kiwi at Oxford), Jeffrey Goldsworthy (Monash), and Philip Pettit (once a longtime professor at Australian National University), it appears that the Antipodes are quite the hotspot for sophisticated theorization about legislative intention and group agency.)
Collins and Tan contend, persuasively, that the “debate about legislative intent has largely proceeded without recourse to philosophical debates about the agency of social entities” (P. 255, footnote omitted.) They highlight that we regularly attribute views, positions, and goals to things like universities and corporations—all of which require intentions. Yet we do not pause for a second to ask whether every individual member of the University of Notre Dame or General Electric has the same intention, that those intentions have to be aggregated in some complex fashion, or that there is some mystical, mysterious entity that arises from this grouping of individuals. How do we do it for these entities? And why can’t we do it for things like legislatures?
As this insightful article demonstrates, there are a range of theories on offer at the intersection of philosophy of mind and social ontology. Collins and Tan offer one which they call the Rational Unity Account. Starting from a functionalist understanding of the philosophy of mind (while noting that their argument can work with other theories of mind), they contend that “an agent is any entity that has enough inter-defined mental states…to provide meaningful content to the entity’s intentions” (PP. 236-237.) Importantly, these mental states “need not reside in brains, since mental states are defined functionally. A mental state is not defined biologically…but rather by the state’s relation to other dispositions or properties” (P. 237.) An agent can have a rational point of view (RPOV), defined as an “interdependent web of mental states and action dispositions” (P. 237.)
If this sounds weird for individual persons (where else could mental states reside?), they seek to reassure by dropping a footnote referencing thought experiments dating back to Locke where a prince and a cobbler swamp “memories, beliefs, preferences” and the like (P. 237 n. 31.) If it makes sense to say the prince is trapped in the cobbler’s body, mental states are not reducible to one brain. I am not a philosopher of mind, but I have to say I am not entirely convinced about that when it comes to individual persons. That said, something like an RPOV account could offer a promising understanding of group agents like legislatures.
As Collins and Tan tell it, legislative procedures and structures can demonstrate which mental states can be attributable to the group entity. In their example of the Australian legislature, the relevant procedures indicate that explanatory memoranda, ministers’ second reading speeches, committee reports, text passed on the third reading, other statutes, and general contextual knowledge compose the minimal, relevant mental states to account for the legislature’s intentions. (The first four items are a function of the procedural requirements to enact a law. Other statutes matter because a legislature extends over time and one presumes the agent does not contradict itself. Assumed general knowledge also goes to rationality: “it would be impossible for a legislature to enact reasoned legislation about topic X if generally known facts about X were not assumed” (P. 242.))
One could add to the list (legislative debates, interpretive canons) or subtract (perhaps eliminate all legislative history a la fellow intentionalist Richard Ekins), but Collins and Tan emphasize that it’s not the particular list that matters, but the more general framework. A method grounded in a rational unity account selects which mental states matter, identifies relevant mental states that are fixed at the time of enactment, and which are attributable entirely to the legislature. And it does not require unanimous intentions, aggregation, or mystical attribution of a kind of legislative Geist.
To celebrate this article is to not say I agree with everything in it. I would need to think much more about their critiques of Richard Ekins’ approach to legislative intention. And I am not yet sure whether the composite agent who has intentions that are attributable to no one person entirely reassures worries about the absence of authorial (and authoritative) legislative responsibility. Indeed, I am enough of an ingenue to learning and debates in social ontology that it’s probably wise for me not to say more along those lines. What matters, however, is that there is an undiscovered theoretical country for interpretive theorists, especially those in the United States, stuck in a stalemate between original public meaning and more dynamic approaches to interpretation. Perhaps one could responsibly reject legislative intention and accept the worries that go along with that. But if one is going to head down that path, one should not do so based on oversimple philosophy about social groups. Collins and Tan provide an excellent entrance to those richer veins to mine.
Cite as: Jeffrey Pojanowski,
Rethinking Legislative Intent, JOTWELL
(September 23, 2025) (reviewing Stephanie Collins & David Tan,
Legislative Intent and Agency: A Rational Unity Account, 44
Oxford J. Legal Stud. 231 (2024)),
https://juris.jotwell.com/rethinking-legislative-intent/.
Aug 25, 2025 Thomas Bustamante
Some legal theorists suppose political authorities make laws for us and facilitate our access to correct reasons. Authorities play an instrumental role because they are better positioned to balance reasons for action and create second-order reasons to guide our behavior while alleviating our burden of judgment. This is a service only authorities can provide. Other theorists offer a different story. Authoritative pronouncements make an impact in our moral world that is not merely epistemic. They are part of what constitutes a moral obligation, such that the content of political morality depends on the pronouncements an authority has made. Dorfman and Harel, in their recent book, Reclaiming the Public, call the first view the “add-on conception” of political authority, and the second view the “constitutive conception.” (Pp. 45-49.) They claim these conceptions fail to provide a satisfactory account of the normativity of law, in that they purport to explain how law becomes binding via an account of the law’s contribution to the content of our moral obligations. This content-based strategy is wrong, for the authors, because “the moral difference that law makes is essentially one of standing, agency, identity, status, or some such concept”; in other words, it is “not a matter of what the law is, but of whose pronouncements can count as law.” (P. 50.) Law makes a content-independent difference even when people have no moral disagreement. Suppose an aggressor punches the face of an innocent person. Although most people converge on the wrongness of such action, they would still resist the thought that the aggressor can be punished through the efforts of a private person. To make the use of coercion appropriate, it must be the case that the legal norms that command such punishment count as ours, in a way that we can be held responsible for and accountable to those norms.
Reclaiming the Public is not primarily focused on jurisprudence, although it offers a jurisprudence that is part of the larger project of offering a noninstrumental account of “the public” (the “public institutions and the officials that run them”). What makes public institutions special is that they are not simply entities which act for us, but rather that they are able to “speak and act in our name.” (P. 1.) The gist of the book is the claim that political authority must be nonhierarchical. (P. 16.) At the center of the project lies a theory of representation that provides a “linking mechanism between institutions and the people whom they govern.” (P. 1.) When the mechanism of representation works well, rules pronounced by an official can be attributed to the citizens of a political community, who can in turn regard themselves as authors of these rules. But how can a representative’s decision count as a decision of the subjects? The proposed answer is that these rules must “reflect the perspective” of citizens. Representatives must endorse the worldview of the subjects, base their own decisions on these subjects’ preferences and judgments, to act in their name. Perspective-taking, in this view, entails attributability, because “ultimately it is the perspective of its subjects that dictate the rules.” (P. 17.)
Perspectivism should not be confused, however, with identification. While the latter denotes the ‘attitude of a citizen who regards herself or himself as belonging to the state and, accordingly, as being accountable (in some sense) for her decisions’, perspectivism is focused on the activity of the representatives. (P. 21.) It requires an attitude of the representatives and offers an account of what representing is:
Taking the perspective of another person comes down to a combination of a certain attitude of deference and a commitment to making binding decisions accordingly. The representative is required to acquire a deferential stance toward the represented person. It involves the willingness to substitute the former’s judgments and/or worldviews and/or essential features with those of the latter. (P. 25.)
Things can get trickier when it comes to political, as opposed to one-to-one, representation. Political representation requires representing people who have sharply different preferences and radically different judgments about political morality. Political representation must, therefore, be modest (in the sense of claiming a sufficient degree of correspondence with the representative’s judgments, rather than “perfect” representation), holistic (in the sense of representing the comprehensive set of preferences and judgments of the represented, rather than each and every view), and proceduralist (in the sense of asking procedural questions about how to form a perspective on substantive questions). (Pp. 28-32.) A representative must ground her decision not on the “brute” or “unarticulated” preferences of a crowd, since often an interpretive judgment may be required to make sense of the reflexive interests of those represented, which includes an interest in a consistent application of the comprehensive scheme of values and norms that underlie the represented individuals’ political morality.
A core claim of Dorfman and Harel’s perspectivism is that being a public entity entails an “absence of self-regard.” (P. 32.) Underneath perspectivism lies a deep egalitarian claim. A nonhierarchical political institution is the only kind of political arrangement that can eliminate the “inequality that is built into any hierarchical relationship between a practical authority and its subjects.” On the authors’ view, the proposed account is the only one “to argue for truly egalitarian authority relations,” the only one that “respects its subjects as both free and equal.” (P. 34.)
With that nonhierarchical account in mind, the first three chapters offer a principled account of public institutions. Chapter one offers a theory of legitimacy that regards public authority as acting from the perspective of the citizens, in a way that enables us to attribute the official pronouncements to the citizens. Chapter two specifies the account of legal normativity anticipated above. It holds that a fruitful account of representation need not address the question, “How can thou (the lawmaker) tell me what to do?,” because the representative’s decision, when legitimate, takes the perspective of the representeds; hence, the “thou,” in that question, is in fact “I,” because those represented must regard the decisions as theirs. (P. 41.) And in chapter three, the text specifies the different roles political institutions may perform.
For the authors, the same pronouncement may have different significances depending on which institution enacts it. When different institutions pronounce a norm like the one that acknowledges a right to marry for LGBTQI+ couples, they may “produce different norms and provide different goods.” (P. 64.) While a legislature’s statement of that right expresses a choice to institute the right, a constitutional provision does something more, because it recognizes also a duty to acknowledge that right and makes its protection nonoptional for political majorities. It matters to distinguish the tasks of different institutions, because institutions are “not merely vessels through which norms get public recognition,” but autonomous agents which are designed to achieve different goods. (P. 64.) The difference between statutory and constitutional norms, for instance, entails a crucial distinction between “choice-reflecting and choice-independent norms.” (P. 72.)
Something similar can be said of the difference between statutory and judicial lawmaking. Dorfman and Harel’s interest in judge-made law lies not in cases in which the law is “inchoate” or “silent,” but rather in the more controversial form of judicial lawmaking, where the judges can “break new legal ground where existing law is clear,” changing “the entire normative landscape.” (P. 84.) According to the authors, Judge Benjamin Cardozo’s argument in MacPherson v. Buick Motor Co. is one of these cases. Previous case law had held that, as a rule, the safety rights of a product’s user “are fully determined by contract, rather than by law.” Cardozo in MacPherson abolished the “privity rule” in product safety. The existing exceptions to the privity rule had previously applied only to a limited class of products, but these exceptions, for Cardozo, “opened the door to overruling the rule itself,” creating a general rule of liability for dangerous products. (Pp. 84-85.)
Dorfman and Harel acknowledge that judicial lawmaking is especially constrained, because it requires a judgment based on reason instead of mere political choice. When it comes to adjudication, they adopt a quasi-Dworkian view that severely restricts judicial discretion and demands “rigorous practices of [legal] justification.” (P. 86.) Cases of first impression are constrained by past political decisions in the following three senses: first, they are bound by the past, since they “articulate the basis for novel rights by arguing from prior recognition of fundamental principles, canonical cases, and influential dicta”; second, judges are constrained by demands of “coherence across legal domains”; and, third, judicial reasoning “is constrained by the specific context to which it is applied so that instances of judicial innovation correspond to specific factual patterns, rather than to the entire range of possible situations.” (P. 87.)
The rest of the book is equally interesting, although the focus shifts from the normativity of law to a general account of publicity. Chapter four provides a fascinating discussion of inherently public goods and specifies cases in which privatization is wrong in itself. Chapter five makes a weaker but more general case against privatization. Even with regards to activities that are not inherently public, privatization should be regarded with suspicion, because it “cuts off the link between processes of decision-making and the citizens and, therefore, erodes the political engagement and its underlying notion of shared responsibility.” (P. 124.) Chapter six explains and defends the notion of “public ownership” Public property has a distinct value not because it entails public enjoyment of certain resources, but because of the public control it allows.
Chapter seven presents an argument against the use of artificial intelligence (AI) in public decision-making processes. Assessments of the legitimacy of the use of AI, it is argued, should not be based on the “quality” or the “efficiency” of the decision that results from that use, but instead on the question of who is entitled to make the decision. Can a decision of an AI count as genuinely authoritative in a political community? Dorfman and Harel are skeptical, because they argue that to count as public, a decision “must be understood, publicly discussed, and openly debated and challenged.” (P. 172.) A decision must satisfy three requirements: transparency, participability, and challengeability. (Pp. 179-183.) Notice an important shift here: while in the first chapter, the authors focused on the activity of representatives (the attitudes one must adopt to be representing someone), in the final (but, unfortunately, the shortest and least developed) chapter, the authors shift to the attitudes of the representeds, and on the demand that they should not only influence the decision of the representatives, but also exercise a form of control over these decisions. As I will argue below, this move is important.
I believe that the book is fascinating and puts jurisprudence on the right track. There are few attempts to vindicate a nonhierarchical account of public authority, but the authors successfully demonstrate this is a valuable pursuit. Nonetheless, in the end, I am only partially persuaded, because this task remains incomplete.
I think there are two ways to develop the views expressed in the book. First, the argument introduced in chapter seven should be generalized and incorporated into the general account of nonhierarchical authority provided in the first two chapters. Nonhierarchical authority requires more than “taking a perspective” and “attributing a view” to those represented; it demands also recognizing a prerogative (of those represented) to hold the representatives accountable for their decisions, exercising ex post control over such decisions. Public institutions must institute and secure actual processes for the exercise of that prerogative. Moreover, the claim to be acting and judging “from the perspective” of those represented must be placed under the scrutiny of the community. There must be venues for making demands of accountability and adjudicating the representatives’ decisions, with a power to evaluate and eventually demand a reform of these decisions. Though there needs to be final authority to resolve certain issues (for instance, the authority of a court to adjudicate a given case), the possibility of official mistakes should be acknowledged and the opportunity for correcting similar mistakes in the future should be available.
Second, I believe that the authors should explain how the meaning of authoritative pronouncements is determined. The authors’ focus on officials’ standing to pronounce what counts as law may lead on to think that they adopt the view that Mark Greenberg described as the “Standard Picture” of jurisprudence. The Standard Picture entails the view that the content of legal pronouncements is determined by some kind of “ordinary linguistic meaning or mental content.” If that is the case, then interpreting a pronouncement is (in part) determining an intention or mental state. Dorfman and Harel’s nonhierarchical account of authority should offer a different account of the interpretation of a public authority’s pronouncements. An official may choose what concepts to utter and (often) what rights to protect. But it is up to the subjects, and arguably other institutions, to administer the content of these concepts and make explicit the further sets of commitments that uttering an authoritative pronouncement entails. This inferentialist view on legal reasoning and interpretation would be an extension of Dorfman and Harel’s nonhierarchical principle to a sphere that they did not apply it: the realm of legal interpretation and legal reasoning writ large.
None of these two suggestions, however, undermines the achievements of this excellent book. The work makes an egalitarian demand and challenges conventional knowledge, raising important questions for further inquiry. That is precisely the kind of thing we expect from an original work in philosophy of law.
Jul 8, 2025 Bill Watson
An all-too-common misconception of the debate between positivists and non-positivists over the nature of law is that the debate hasn’t progressed since H.L.A. Hart and Ronald Dworkin sparred over the subject in the mid-to-late twentieth century. Emad Atiq’s book Contemporary Non-Positivism dispels that misconception and brings readers up to date on the debate. Published in Cambridge University Press’s “Elements in Philosophy of Law” series, the book provides a concise review of the contemporary literature on non-positivism, while also breaking new ground by articulating and defending a modest “non-positivism without the frills.”
The book’s four chapters address (1) the subject matter and methodology of the positivism/non-positivism debate; (2) arguments against positivism; (3) different versions of non-positivism, including Atiq’s non-frilly non-positivism; and (4) questions for further inquiry. Chapter 1 defines non-positivism as a view about the necessary criteria “for a scheme of social organization to constitute a legal system” (P. 1). According to non-positivism, a legal system “must satisfy not just non-normative criteria … but essentially normative criteria as well, such as being to some extent good, or rational, or just” (id.).
Methodologically, Atiq views his project as “descriptive, explanatory, and synthetic” (P. 4). The aim, he says, “is to catalog what legal rules and practices are generally like and to develop a theory of law that explains the systematic features while being consistent with our considered views on related matters, such as the nature of rules, group agency, language, and morality” (id.). Embracing the terminology of contemporary metaphysics, Atiq suggests that “we’re interested in the essence and grounds of being a legal system,” and relatedly, in the essence and grounds of the individual legal norms belonging to any such system (P. 6).
Chapter 2 lays out five arguments against positivism. First, for much of recorded history, jurists in many legal systems treated principles of rationality and justice as the law (e.g., “natural law”), regardless of local practice. They asserted that the legality of these principles was self-evident. Positivism struggles to explain this fact without resorting to claims that past jurists were either confused or employing a different concept of law than the concept we ordinarily employ today. This is an important objection to positivism that Atiq has developed more fully elsewhere and that positivists, to my mind, have not yet adequately addressed.
The second and third arguments are familiar objections to positivism, associated with Dworkin, based on moral reasoning in adjudication and theoretical disagreements. Everyone agrees that judges sometimes rely on moral reasoning to adjudicate legal disputes. Moreover, judges at least appear to engage in persistent theoretical disagreements over the grounds or determinants of law. While positivists have made various attempts to explain these phenomena, their attempts have generally failed to persuade non-positivists and often require attributing widespread confusion or disingenuity to judges—a theoretical cost.
The fourth argument uses variations on Hart’s “gunman situation writ large” to elicit the intuition that these situations are borderline cases of legal systems—an intuition that positivism struggles to explain. And the fifth argument is that law is a functional, or goodness-fixing, kind: law’s essential function is to realize a normative ideal associated with the rule of law; law is better as law insofar as it instantiates rule-of-law virtues like clarity, generality, and publicity. Crucially, just as a radically blunt object cannot be a knife, something cannot be law if it radically fails to achieve law’s essential function—if it fails to minimally instantiate the relevant normative ideal.
Chapter 3 turns to versions of non-positivism, assessing the strengths and weaknesses of natural law theories, Dworkin’s “law as integrity,” one-system views (on which law is a subset of morality), and recent suggestions that law is a “dual-character” or an “aggregative-cluster” concept. Much of the chapter is devoted to Atiq’s affirmative proposal—which he dubs “non-positivism without the frills,” because it’s designed to address positivism’s explanatory deficiencies while taking on minimal extra baggage. That proposal leans heavily on the previously mentioned idea that law is a goodness-fixing kind.
According to Atiq, a legal system’s essential function is to instantiate a normative ideal associated with the rule of law. A scheme of social organization that radically fails to instantiate that normative ideal cannot be a legal system. Thus, the existence of any legal system depends on the satisfaction of a normative criterion (and that alone, for Atiq, gets us to non-positivism). Derivatively, the existence of any legal norm depends on the norm belonging to a scheme of social organization that minimally instantiates a normative ideal, and so likewise depends on the satisfaction of a normative criterion. Legal norms are all partly grounded in this normative fact.
Atiq further proposes that the concept of law is an aggregative-cluster concept, whose criteria of application include both non-normative and normative properties: “[U]sers of legal language rely on both social criteria, such as the rule’s similarity to one derivable from a socially embraced rule of recognition, as well as normative criteria, such as the rule’s contribution to law’s normative aspirations” (P. 67). How to aggregate those criteria is indeterminate—leaving plenty of room for competent users of the concept to disagree over its application. “Conceptual competence follows from an understanding of easy and prototypical cases of law, where the social and normative properties of rules more or less point in the same direction” (id.).
Unlike Atiq, I have strongly positivist intuitions and have defended positivism in prior work. I need to think more about Atiq’s non-frilly non-positivism, but I find much of the theory plausible and am surprised by how little it threatens core positivist intuitions. I’d prefer to draw a sharper distinction between non-positivism about law, in the sense of legal systems, from non-positivism about law, in the sense of individual legal norms. With respect to legal systems, I’m unsure whether legal systems essentially aim at a normative ideal, but I agree with Atiq that, if they do, then their existence likely depends on minimally realizing that ideal—on a normative fact.
It would follow that the existence of any individual legal norm is also grounded in a normative fact (namely, the fact that the norm belongs to a system that minimally realizes a normative ideal). On the currently popular grounding-based definition of the positivism/non-positivism divide, that alone would suffice to prove non-positivism. I’m not sure, however, that positivists should be troubled by that conclusion, since it doesn’t seem to threaten core positivist intuitions. To use a stock example, that conclusion, by itself, would not preclude individual norms created by manifestly unjust legislation, like the Fugitive Slave Act, from being legally valid.
One lesson that I’m tempted to draw is that the grounding-based definition of the positivism/non-positivism divide fails to track our actual disagreements (a point that others have made as well). We might instead define positivism as holding that any norm’s legality depends on its source, not its merit. On that definition, Atiq’s theory is still non-positivist because it makes legality turn on an often-indeterminate aggregation of non-normative and normative properties. Yet, even that conclusion may not trouble some positivists, since Atiq seems to suggest that a norm’s lack of merit would only render the norm indeterminately legal, as opposed to determinately not legal.
In any event, the plausibility of Atiq’s theory invites a rapprochement, or at least further reflection on where our real disagreements lie. There is, of course, much more nuance to Atiq’s arguments than I can convey in this Jot. I encourage you to read the book: for those who haven’t followed the literature on non-positivism lately, the book is a clear and accessible refresher; and for those who have been following, the book itself is an important and thought-provoking contribution.
Jun 12, 2025 Maris Köpcke
The best answers to the questions “who should decide?,” “what should be decided?,” and “how should the decision be taken?” do not always sit easily together. Sound institutional design wrestles with this problem. Procedures for authoritative decision-making ought to minimize the danger of unjust or misguided outcomes. But they also ought to ensure, so far as possible, that those concerned have a say in the decision, lest their self-direction be unjustly curbed by someone else choosing on their behalf.
Over the years, political philosophy and constitutional scholarship have proposed different recipes for distributing political power within a community, by way of responses to the above concerns. Ignacio Guiffré thinks that the currently most extended recipe – strong constitutionalism – is in need of improvement. He also thinks that its supporting theories harbor fundamental inconsistencies. In defending these claims, this thought-provoking article flags a number of soft spots in contemporary political and legal theory, concerning matters that reach beyond institutional design and speak to the foundations of certain strands of liberalism.
Strong constitutionalism, says Guiffré, has “globally expanded” (Pp. 1273, 1276). In a strong constitutionalist model, simply put, a constitutional court has powers of judicial review of legislation. It has the last word concerning the interpretation and application of a written, entrenched constitution. Guiffré finds that this model – with some variations – is spreading not only institutionally, but also as the ideal supported by much doctrinal thought (section 2). Yet the model is vulnerable to a range of objections, Guiffré claims. Chief among them is the value of democratic deliberation as a source of legitimacy of political decisions. On this family of views, well represented by Jürgen Habermas, political decisions ought to be the result of an “inclusive and dialogical process” (P. 1276), rather than of the “monologic” and “solipsistic” (P. 1290) reasoning of a single agent – the court. It is time to take these objections seriously, Guiffré argues, and aspire to “deliberative constitutionalism”: a model that reconciles the good sense of strong constitutionalism with the main tenets of deliberative democracy.
The article’s strength lies not in its portrait of the weaknesses of strong constitutionalism as such, but in its portrait of the weaknesses of influential philosophical theories that profess to support this institutional model. This is the remit of the article’s central section 3. Guiffré focuses on the works of John Rawls, Ronald Dworkin and Robert Alexy. He shows that, in different ways, they nominally support deliberative democracy but settle for strong constitutionalism’s court-centric framework when it comes to spelling out a concrete institutional proposal. Guiffré resourcefully articulates the inconsistencies in the thought of the three authors. I think his critique cuts more deeply still than he himself demonstrates.
Guiffré is right to point out the tension between Rawls’ defense of deliberative democracy and his claim that the United States Supreme Court is the clearest example of applied public reason. One could usefully probe, furthermore, the extent to which this tension is a manifestation of a tension at the very heart of Rawls’ notion of public reason, a tension also palpable, perhaps, when one endeavors to read together Rawls’ design of the “original position” with his eventual insistence on the “political, not metaphysical” importance of a social consensus.
According to Dworkin, constitutional review improves the democratic quality of political decision-making. Dworkin famously presents courts as a forum of principle and legislatures as a forum of policy. Guiffré (Pp. 1286-92) echoes a broad range of critiques of that distinction, including Habermas’ insistence on the virtues of deliberative self-government. As against Dworkin’s peculiar theories of rights, and his associated claim that courts are institutionally better placed than legislatures to settle questions of rights, Guiffré might have also drawn on recent work that advances a moral argument for the legislature’s institutional capacities. These can be defended by appeal to some of the sound considerations of justice that inspire Dworkin’s own case for judicial review.
Alexy, in turn, proposes “discursive constitutionalism” as an institutionalization of his dual conception of law – as having both a real dimension, related to social facts, and an ideal dimension, related to moral correctness. For Alexy, democracy’s real dimension involves decision-making by majority vote, while its ideal dimension involves decision-making by argumentation. As Guiffré notes (Pp. 1292-96), Alexy’s claim that a constitutional court is closer to the law’s ideal dimension than a legislature, combined with his view of constitutional rights as principles to be applied through “proportionality” analysis, yields an institutional proposal that is difficult to reconcile with the tenets of deliberative democracy. Although Guiffré perceptively problematizes Alexy’s notion of “argumentative representation” (Pp. 1298-99), the critique could have been sharpened by highlighting how techniques of proportionality and balancing are liable to serve as cloaks for unstated moral argument on the part of adjudicative institutions.
It would have been helpful if Guiffré offered more than a glimpse of the model he proposes to put in place of strong constitutionalism. The article only provides a few scattered examples of “institutional alternatives committed to democratic deliberation” (P. 1277), many of them found in Commonwealth countries. They include declarations of unconstitutionality and legislative responses thereto, public audiences, amicus curiae, or the publicity of internal deliberations of constitutional courts, among others. Guiffré (P. 1297) also proposes a “procedural” kind of judicial review, wherein courts’ degree of deference to the norms under scrutiny depends at least partly on their democratic credentials.
Any good article raises important questions beyond those it can afford to answer. This article largely assumes the relative strengths of both deliberative democracy and strong constitutionalism. Although here and there (Pp. 1282-84) we detect the author’s own voice in favor of “dialogical” accounts, for the most part the article simply presents the views on deliberative democracy advanced by others. Why we should care for the “deliberative turn” (P. 1274), indeed, why the latter is a late-twentieth-century twist (P. 1274) rather than a longstanding position with roots in ancient thought all the way through Rousseau, is mostly left unstated. So is the reason why strong constitutionalism ought to become integrated with, rather than altogether replaced by, deliberative democracy. Deliberation on these matters must be left for another occasion.
Cite as: Maris Köpcke,
Justice, Democracy, and Institutional Design, JOTWELL
(June 12, 2025) (reviewing Ignacio Guiffré,
Strong Constitutionalism and Deliberative Democracy: Inconsistencies in Rawls, Dworkin, and Alexy, 21
Int’l J. Const. L. 1273 (2023)),
https://juris.jotwell.com/justice-democracy-and-institutional-design/.
