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APA Newsletters
APA Newsletters Volume 06, Number 2 Spring 2007 NEWSLETTER ON PHILOSOPHY AND LAW FROM THE EDITOR, STEVEN SCALET ARTICLES BRIAN H. BIX “Joseph Raz and Conceptual Analysis” JULES L. COLEMAN “Law and Political Morality” TIMOTHY ENDICOTT “Interpretation, Jurisdiction, and the Authority of Law” KENNETH EINAR HIMMA “Revisiting Raz: Inclusive Positivism and the Concept of Authority” LIAM MURPHY “Razian Concepts” STEPHEN PERRY “Two Problems of Political Authority” © 2007 by The American Philosophical Association ISSN: 1067-9464 APA NEWSLETTER ON Philosophy and Law Steven Scalet, Editor Spring 2007 Volume 06, Number 2 relating to such theories. In particular, I will look at the role of conceptual analysis in legal theory, focusing on some recent FROM THE EDITOR work by Joseph Raz.1 I. Overview Edition in Tribute to Joseph Raz It was a commonplace in the history of jurisprudence to focus on the inquiry, what is law? It is worth taking a few moments Joseph Raz is professor at Columbia University Law School to consider the question more closely. and research faculty at Oxford University. His writings influence generations of scholars and his many students are now among First and foremost, there is a potential confusion (heightened 2 the leading scholars in philosophy of law. in English more than in other major languages ), as “law,” even if focused on matters jurisprudential (and not speaking of physical For this edition of the Newsletter we invited leading political laws, the laws of games, social conventions, etc.), can refer to and legal philosophers to analyze some aspect of Professor a number of different, if related, matters: most prominently, Raz’s ideas. -
Natural Law and the Challenge of Legal Postivism
NATURAL LAW AND THE CHALLENGE OF LEGAL POSTIVISM _______________________________________ A Dissertation presented to the Faculty of the Graduate School at the University of Missouri-Columbia _______________________________________ In Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy _______________________________________ by BRIAN P. CASEY Dr. Robert N. Johnson, Dissertation Supervisor DECEMBER 2007 © Copyright by Brian P. Casey 2007 All Rights Reserved The undersigned, appointed by the Dean of the Graduate School, have examined the dissertation entitled NATURAL LAW AND THE CHALLENGE OF LEGAL POSTIVISM Presented by Brian P. Casey A candidate for the degree of Doctor of Philosophy And hereby certify that, in their opinion, it is worthy of acceptance. Professor Robert N. Johnson Professor Peter Vallentyne Professor Philip G. Peters, Jr. Professor Joseph Bien Professor Paul Weirich For Susan, Max and Teddy ACKNOWLEDGEMENTS I would like to thank my advisor Dr. Robert Johnson for his patience, encouragement and support, and Dr. Peter Vallentyne for this insightful comments on prior drafts. I would also like to thank Dr. John Finnis for the generous time he gave me discussing the material that would form the basis for this dissertation. Lastly, I would like to thank the remaining members of my dissertation committee as well the faculty at the University of Missouri-Columbia Philosophy Department and the University of Notre Dame Law School that provided the training that made this dissertation possible. ii TABLE OF -
Curriculum Vitae Kenneth Einar Himma Department of Philosophy
Curriculum Vitae Kenneth Einar Himma Department of Philosophy Seattle Pacific University 3307 Third Avenue West Seattle, WA 98119 206 281 2038 (office) 206 281 2335 (fax) [email protected] http://home.myuw.net/himma Education B.A. 1985 University of Illinois at Chicago M.A. 1987 UCLA J.D. 1990 University of Washington School of Law Ph.D. 2001 University of Washington Dissertation Title: The Status of Legal Principles Dissertation Committee: Ronald Moore (Chair), Laurence BonJour, Robert Coburn, Jane Ellis, William Talbott Academic interests Areas of Specialization: Philosophy of Law, Philosophy of Information; Ethics of Information Technology, Applied Ethics Areas of Competence: Logic, Aesthetics, Social and Political Philosophy, Ethics, Philosophy of Religion Honors and awards Phi Beta Kappa, elected 1984 Phi Kappa Phi, elected 1984 Golden Key National Honor Society, elected 1984 National Honor Society of Political Science, elected 1984 Golden Key Peat Marwick Scholar ( University of Illinois at Chicago ), 1985 Graduated with Highest Honors and Departmental Distinction ( University of Illinois at Chicago ), 1985 UCLA Graduate Fellowship (UCLA) 1985-86 Law School Academic Scholarship, Anonymous Fund ( University of Washington School of Law ), 1987 Graduated with Honors ( University of Washington School of Law ), 1990 Nominated for University of Washington Distinguished Teaching Award (as Graduate Student), 2001 Nominated for University of Washington Distinguished Teaching Award (as Lecturer), 2004 Keynote Speaker, University of Washington -
Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews†
HIMMA (DO NOT DELETE) 8/16/2018 11:16 AM An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews† KENNETH EINAR HIMMA* TABLE OF CONTENTS I. THE RIGHT TO RELIGIOUS FREEDOM AS A SPECIAL RIGHT ......................... 220 II. JUSTIFYING PROTECTING AN INTEREST WITH AN ENUMERATED CONSTITUTIONAL RIGHT: MORAL AND EPISTEMIC CONSIDERATIONS ........ 225 III. A FIRST STEP TOWARDS EVALUATING WHETHER RELIGIOUS FREEDOM SHOULD BE PROTECTED BY A SPECIAL RIGHT: EXPLICATING THE CONCEPT OF RELIGION ................................................ 228 IV. TAKING A LESS GENERAL APPROACH: INTERESTS IMPLICATED BY VARIOUS PARTICULAR RELIGIOUS TRADITIONS ........................................ 233 † This study was supported by the Tomsk State University Academic D.I. Mendeleev Fund Program in 2015. This Article has benefitted from the constructive suggestions of many people. I am indebted to the participants of 2nd International Conference on Constitutional Rights and Political Rights, Universidade Federal de Minas Gerais in Belo Horizonte, Brazil; and University of San Diego Law and Religion Conference; their comments and feedback were especially constructive. This Article was also presented at the Faculties of Law at the Universities of Belgrade and Zagreb. I am grateful to Stanley Fish, Larry Alexander, Thomas Bustamante, Luka Burazin, Miodrag Jovanovic, and Bojan Spaic for their comments. I am especially indebted to Andrew Koppelman for an extended critique of the arguments of this Article. * © 2017 Kenneth Einar Himma. Lecturer, University of Washington School of Law. Ph.D. 2001, University of Washington, J.D. 1990, University of Washington School of Law, M.A. 1987, UCLA, B.A. 1985, University of Illinois at Chicago. 217 HIMMA (DO NOT DELETE) 8/16/2018 11:16 AM V. -
H.L.A. Hart: a Twentieth-Century Oxford Political Philosopher John M
Notre Dame Law School NDLScholarship Journal Articles Publications 2009 H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher John M. Finnis Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Law and Politics Commons, Legal History Commons, and the Natural Law Commons Recommended Citation John M. Finnis, H.L.A. Hart: A Twentieth-Century Oxford Political Philosopher, 54 Am. J. Juris. 161 (2009). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/864 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. H.L.A. HART: A TWENTIETH-CENTURY OXFORD POLITICAL PHILOSOPHER Reflections by a FormerStudent and Colleague JoHN FINNIs I Herbert Hart was born in 1907, a son of prosperous tailors in the north of England. From the age of eleven he was boarding-schooled in the south, but after some years was educated near home, at an excellent grammar school where he finished as Head Prefect, regarded by the Head Master as a head boy of unsurpassed loyalty and capacity. By competitive scholarship examination he proceeded to New College, one of the University of Oxford's oldest and best colleges, where he studied Greek, Latin, ancient history and philosophy, with brilliant success. Before, during and after his Oxford studies, he travelled widely throughout Europe; he had a gift for languages and throughout his life an immense enthusiasm for places, people, and literature. -
The Very Idea of Legal Positivism Introduction
The very idea of legal positivism Stanley L. Paulson Introduction Much in recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism.1 As a point of departure in distinguishing them, the separation principle is helpful.2 At the most general level, the separation principle – as Kenneth Einar Himma neatly puts it – denies ‘that there is necessary overlap’ between the law and morality.3 The separation principle counts, then, as the contradictory of the morality principle, according to which there is ‘necessary overlap’ between the law and morality, however this might be explicated.4 What the legal positivist’s 1 An excellent discussion, chock full of arguments, is Kenneth Einar Himma, ‘Inclusive Legal Positivism’, in The Oxford Handbook of Jurisprudence and Legal Philosophy, ed. Jules Coleman et al. (Oxford: Oxford UP, 2002), 125-65. See, too, the detailed statements in Matthew H. Kramer, In Defense of Legal Positivism (Oxford: Oxford UP, 1999); Kramer, Where Law and Morality Meet (Oxford: Oxford UP, 2004). 2 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review, 71 (1957-8), 593-629, repr. in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 49-87. 3 Himma, ‘Inclusive Legal Positivism’ (n. 1), 125. 4 ����������������������������������������������������������������������� The claimed ‘necessary overlap’ between the law and morality is under- Revista Brasileira de Estudos Políticos | Belo Horizonte | n. 102 | pp. 139-165 | jan./jun. 2011 140 THE VERY IDEA OF LEGAL POSITIVISM denial of the morality principle comes to can be refined, we are told, by appealing to the distinction between inclusive and exclusive legal positivism. -
APA Newsletters
APA Newsletters Volume 05, Number 2 Spring 2006 NEWSLETTER ON PHILOSOPHY AND LAW FROM THE EDITORS, JOHN ARTHUR & STEVEN SCALET ARTICLES KENNETH EINAR HIMMA “Introduction: Unresolved Problems for Legal Positivism” ANDREI MARMOR “The Conventions of a Legal Order” BRIAN BIX “Legal Positivism and ‘Explaining’ Normativity and Authority” MATTHEW H. KRAMER “Legal Positivism and Objectivity” KENNETH EINAR HIMMA “Positivism and the Problem of Explaining Legal Obligation” © 2006 by The American Philosophical Association ISSN: 1067-9464 APA NEWSLETTER ON Philosophy and Law John Arthur & Steven Scalet, Co-Editors Spring 2006 Volume 05, Number 2 In this connection, it is especially worth noting that the way ROM THE DITORS in which the substantive rules and principles of law are taught F E in the law schools presupposes that the core tenets of legal positivism are. In every casebook that I have ever seen, the properly promulgated utterances of courts and legislatures are John Arthur taught as having the status of “law” without regard to whether Binghamton University those utterances conform to moral norms or succeed in showing existing legal practice in its most favorable moral light Steven Scalet (i.e., succeed in justifying the exercise of the state’s coercive Binghamton University power against citizens). Those latter concerns are treated as extrinsic to the question of whether something counts as law. We are pleased to take over from Ted Benditt as co-editors of Mainstream pedagogy in law school transparently presupposes the Newsletter on Philosophy of Law. Ted has done a superb that law is a social artifact manufactured by courts and job, and we are sure we speak for the many readers of the legislatures according to norms that are contingent in character; Newsletter in expressing our thanks to Ted.