Oxford Studies in Philosophy of Law Volume 5

Oxford Studies in Philosophy of Law Volume 5

Leslie Green, Brian Leiter

No description available

Publisher

Oxford University Press

Publication Date

11/22/2024

ISBN

9780198919629

Pages

224

Categories

LawSocial SciencesPhilosophy

About the Author

Leslie Green

Leslie Green

Leslie Green is a leading scholar in the analytic philosophy of law, or jurisprudence as it is often called.

Born in Bridge of Weir, Renfrewshire, Scotland, and educated at Queen's University, Canada, and at Nuffield College, Oxford, he completed his dissertation—which culminated in a book, The Authority of the State—under professors Charles Taylor and later Joseph Raz.

In 2006, Green was elected to the Professorship of Philosophy of Law at Oxford University, which includes a Fellowship at Balliol College. The Professorship, a new statutory chair, was created upon the retirement of Joseph Raz from his personal Chair, also at Balliol. It is one of just two statutory professorships in jurisprudence at Oxford, the other being held by John Gardner. In 2010, the distinguished lawyer, Philip Gordon, endowed the Balliol fellowship, and Green became the first Pauline and Max Gordon Fellow at Balliol. At the same time, Green took up a part-time appointment as Professor and Distinguished University Fellow in the Philosophy of Law at Queen's University. Green is also an Adjunct Professor at McMaster University.

Prior to this, Green taught for most of his career at Osgoode Hall Law School of York University, in Toronto. He has also taught at Lincoln College, Oxford, at Boalt Hall Law School at the University of California, Berkeley; at the University of Chicago Law School, and was for several years a Regular Visiting Professor at the University of Texas at Austin law school. He has been a visiting fellow at Columbia University's Center for Law and Philosophy, and a Hauser Global Faculty member at New York University School of Law.

Green writes on political philosophy, legal obligation and authority, legal reasoning, as well as on moral and legal issues surrounding sexuality. His work defends surprising combinations of ideas. He is a defender of legal positivism who argues that there are many necessary connections between law and morality. He denies that there is a general duty to obey the law, but thinks reasonably just legal systems are morally valuable and are to be defended where they exist and established where they do not. He is a liberal in sexual ethics who maintains that sexual objectification is sometimes a good thing.

Questions & Answers

The Practice Theory, as developed by H.L.A. Hart, explains obligations and legal rules by positing that they are grounded in social practices. It suggests that obligations arise when a group of people regard their own behavior as binding, creating a standard that is not imposed by external authority but emerges from shared attitudes and actions. This theory emphasizes the role of social recognition and the internal point of view of the legal system, where legal rules are recognized as authoritative by those within the system. Legal rules are seen as a subset of social rules, with the primary difference being that legal rules are recognized as having a binding force by the legal system. The Practice Theory thus provides a non-metaphysical account of obligations and legal rules, focusing on behavioral and psychological facts rather than inherent moral or metaphysical properties.

The role of social recognition in the normativity of legal obligations is foundational. According to the practice theory, legal obligations arise from shared attitudes towards patterns of action within a society. Social recognition is crucial as it validates these patterns, making them binding standards. It is not just about labeling individuals as legal officials; it involves attributing normative status through collective practices. This recognition allows legal obligations to have binding force, as individuals regard these practices as binding standards. However, the theory also acknowledges that social recognition alone is neither necessary nor sufficient for obligation, as it must be grounded in non-social, inherently normative factors to fully explain the normativity of legal obligations.

The concept of open texture, as described by H.L.A. Hart, relates to legal interpretation and precedent by addressing the inherent ambiguity in language and legal rules. Open texture refers to the fact that certain words or legal terms have a core meaning that is clear, but also a penumbra of cases where the application of the term is uncertain. This ambiguity necessitates legal interpretation.

Precedent plays a crucial role in managing open texture. When a court interprets a legal term in a precedent case, it sets a precedent that constrains future interpretations. This precedent helps to clarify the penumbra by providing a standard for how the term should be applied in similar cases. However, the open texture of legal terms means that precedents can also be subject to reinterpretation, allowing for the evolution of legal understanding over time.

International law faces significant challenges in establishing clear roles for officials and subjects. Firstly, the decentralized nature of international law, where states both participate in law-making and are subjects, leads to ambiguity. The proliferation of international institutions and offices can dilute the recognition of a distinct role for international legal officials. Additionally, the "role-splitting" concept, where state officials perform dual functions as both state and international agents, further blurs these roles. The challenge of maintaining a clear distinction between officials and subjects is crucial for the authority and legitimacy of international law, as it affects the recognition of legal obligations and the enforcement of rules. The lack of a unified hierarchy and the potential for conflicting claims to authority among different actors exacerbate these challenges.

French legal realism, distinct from other forms, emphasizes the interpretive nature of law and its empirical basis. It differs by its radical skepticism towards the inherent meaning of legal texts, arguing that meaning is ascribed by authorized interpreters, often judges, rather than being inherent in the text. This contrasts with more moderate realists who believe texts have a finite number of meanings. French realism also highlights the role of "authentic interpreters," including the President, Parliament, and police, who can give final interpretations that cannot be challenged. This leads to a dynamic hierarchy of norms, as interpreted by these authorities, rather than a fixed hierarchy based on the source of the norm. The implications for legal interpretation and the role of judges are significant: judges are seen not just as law applicators but as interpreters with substantial discretion, potentially creating law rather than merely applying it. This challenges traditional views of judicial authority and the separation of powers, emphasizing the importance of interpretive discretion and the social construction of legal norms.

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