Law & Society Blog

In this great new paper, Joshua Knobe and Brian Leiter subject three philosophical approaches to moral psychology to empirical testing, in the sense that they evaluate the fit of each of the three philosophical models with what we currently know about how moral behavior really works…. (Not just the owl of Minerva first takes flight with twilight closing in.) That, of course, has been one of Nietzsche’s recurring criticisms of traditional morals, and so it comes as no surprise that Nietzsche’s account fits more comfortably with the empirical evidence of how moral behavior really works.

Hanno has taken issue with my post, which posits a semantic nexus between first-order and second-order observation:
I don’t think that a decision must necessarily be unlawful from an internal point of view in order to be considered activist from an external point of view.
All right, then. Here is a system showing the claims of defective […]

We’ve made the point before that the distinction which systems theory draws between the observer’s perspective and the participant’s perspective relates to the distinction between realists and formalists. In system’s theory, the observer [or second-order observer] of a social system (such as law) understand the system by observing the participants [or first-order observers] as they […]

Rather, an observation is of second order only if the object of the observation is another system’s blind spot, that is, it’s constitutive difference or its code.Judicial activism, therefore, means something very different if viewed from an internal and an external perspective. For the participant in the legal system, judicial activism is a decision that makes new law by overruling precedent, or expands the reach of a doctrine (e.g., applying the equal protection clause to age discrimination), or declares a previously unrecognized set of facts as relevant to the legal system (e.g., decisions of foreign courts, economics textbooks, sociological findings).

Over the past 50 years or so, legal theory has actively sought out and imported a host of new ideas and methodologies from related (and not so related) fields, such as philosophy, sociology, psychology, and, of course, economics. Why? Certainly, curiosity played a crucial role, and so did the quickly expanding reach of the law. […]

Believing, I suppose, that the best defense is an offense, Dennis Patterson replies to my observation about the current state of the discourse known as ǃÚanalytic jurisprudence’ by challenging me to provide an argument in favor of one alternative I suggested: social philosophy as informing theories about the concept of (and nature of) law. Unfortunately, […]

My last entry on the subject of legal reasoning outlined the fundamental distinction between the external and the internal point of view. While the external point of view is of critical importance to parties and observers of the legal system, such as sociologists, philosophers, economists, and those involved in other “law & …” disciplines, the […]

Below is a comment from Dennis Patterson, the latest in the discussion about what (if anything) is wrong with jurisprudence, that Nico Artzi started with this post.
In Nico’s “earlier effort,ǃ? the following claim is central: “For reasons that have to do with the history and sociology of ideas ÇƒÏ not substantive reasons ÇƒÏ jurisprudes are […]

An earlier entry of mine in this blog ÇƒÏ meant to provoke a discussion rather than to “argueǃ? a point ÇƒÏ has resulted in some interesting responses. I wish particularly to address the opening remark in Dennis Patterson’s response who notes that:
Anyone familiar with, say, HLA Hart’s book *The Concept of Law* could hardly […]

Consider the following problem, which was presented by Paul J. Ferraro and Laura O. Taylor of Georgia State University to about 200 Ph.D. economists at the 2005 annual meetings of the American Economic Association:
You won a free ticket to see an Eric Clapton concert (which has no resale value). Bob Dylan is performing on the […]