Law As An Artifact Kenneth Einar Himma

https://ebookmass.com/product/law-as-an-artifact-kenneth-einar-
himma/

★★★★★
4.9 out of 5.0 (33 reviews )

Instant PDF Download

ebookmass.com
 Law As An Artifact Kenneth Einar Himma

EBOOK

Available Formats

■ PDF eBook Study Guide Ebook

EXCLUSIVE 2025 EDUCATIONAL COLLECTION - LIMITED TIME

INSTANT DOWNLOAD VIEW LIBRARY

Here are some recommended products for you. Click the link to
download, or explore more at ebookmass.com

Morality And The Nature Of Law Kenneth Einar Himma

https://ebookmass.com/product/morality-and-the-nature-of-law-kenneth-
einar-himma/

The Artifact Brian Hill

https://ebookmass.com/product/the-artifact-brian-hill/

Business Law: Text and Cases Kenneth W. Clarkson

https://ebookmass.com/product/business-law-text-and-cases-kenneth-w-
clarkson/

Law As Performance Julie Stone Peters

https://ebookmass.com/product/law-as-performance-julie-stone-peters/
Business Law: Text and Cases 15th Edition Kenneth W.
Clarkson

https://ebookmass.com/product/business-law-text-and-cases-15th-
edition-kenneth-w-clarkson/

Teaching English as an International Language Ali Fuad

Selvi

https://ebookmass.com/product/teaching-english-as-an-international-
language-ali-fuad-selvi/

Translation as a Science Translation as an Art, 2e: A

Practical Approach 2nd Edition Noa Talaván

https://ebookmass.com/product/translation-as-a-science-translation-as-
an-art-2e-a-practical-approach-2nd-edition-noa-talavan/

Marriage as a National Fiction: Represented Law in the

Modern Novel Dagmar Stöferle

https://ebookmass.com/product/marriage-as-a-national-fiction-
represented-law-in-the-modern-novel-dagmar-stoferle/

Curiosity as an Epistemic Virtue 1st ed. Edition Nenad

Miš■evi■

https://ebookmass.com/product/curiosity-as-an-epistemic-virtue-1st-ed-
edition-nenad-miscevic/
L AW A S A N A RT I FA C T
ii
Law as an Artifact
Edited by
LU K A B U R A Z I N
KENNETH EINAR HIMMA
C O R R A D O ROV E R S I

1
iv

1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© The several contributors 2018
The moral rights of the authors‌have been asserted
First Edition published in 2018
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2018936198
ISBN 978–​0–​19–​882197–​7
Printed and bound by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
 Contents

Editors’ Introduction vii

List of Contributors xiii

PA RT I . M E T H O D O L O G Y
1. Legal Positivism about the Artifact Law: A Retrospective Assessment 3
Brian Leiter
2. Law as a Malleable Artifact 29
Frederick Schauer
3. Law, Fiction, and Reality 44
Andrei Marmor
4. Law, Morality, Art, the Works 61
Kevin Toh

PA RT I I . O N TO L O G Y
5. On the Artifactual—​and Natural—​Character of Legal Institutions 89
Corrado Roversi
6. Legal Systems as Abstract Institutional Artifacts 112
Luka Burazin
7. The Conceptual Function of Law: Law, Coercion, and Keeping
the Peace 136
Kenneth Einar Himma

PA RT I I I . N O R M AT I V I T Y
8. Obligations from Artifacts 163
Brian H. Bix
9. Law Is an Institution, an Artifact, and a Practice 177
Kenneth M. Ehrenberg
vi

vi Contents
10. Processes and Artifacts: The Principles Are in the Author Herself 192
Veronica Rodriguez-​Blanco

PA RT I V. S K E P T I C I S M
11. A Strange Kind of Artifact 217
Giovanni Tuzet
12. Not All Law Is an Artifact: Jurisprudence Meets
the Common Law 239
Dan Priel

Index 269
 Editors’ Introduction

The idea that law is an artifact is commonly accepted among legal theorists.
For example, Brian Leiter and Frederick Schauer reject an “essentialist”
approach to analyzing the concept of law on the ground that law is an arti-
fact and hence subject to change.1 John Gardner analyses the relationship
between law as a genre of artifacts, on the one hand, and legal systems (basic
units) and laws (sub-​units) as artifacts belonging to this genre, on the other.2
Neil MacCormick and Kenneth Ehrenberg advocate the functional analysis
of law since, in the case of artifacts, functions seem to play an important
role.3 Leslie Green rejects the possibility of applying an intention-​based ana-
lysis to the “law” as such but endorses this kind of analysis in the case of
particular norms, branches of law or legal institutions.4 Surprisingly, for all
these statements, a complete analysis of what the claim that law is an artifact
ontologically entails and what consequences, if any, this claim has for philo-
sophical accounts of law has yet to be made.
This state of affairs is more surprising given the fact that the general philo-
sophical discussion about the nature of artifacts is very rich and tends to
alternate between four different notions relevant to law—​namely, intention,
function, history, and action. Most conceptual theories of artifacts high-
light, in some way, the concept of intention as playing a role in the exist-
ence conditions for artifacts. Indeed, Risto Hilpinen explicates the nature
of artifacts in terms of an author’s intentions, thus considering the concepts
of “author” and “authorship” as central when accounting for the artifac-
tual domain.5 Lynne Rudder Baker situates the author’s intention within
a necessary functional framework, connecting the existence of an artifact
with the author’s intention to produce an object able to perform a specific

1
See Brian Leiter, ‘The Demarcation Problem in Jurisprudence: A New Case for Scepticism’
(2011) 31 Oxford Journal of Legal Studies 663; Brian Leiter, ‘Why Legal Positivism (Again)?’
(University of Chicago, Public Law Working Paper No. 442) <http://​ssrn.com/​abstract=2323013>
accessed 20 March 2017; Frederick Schauer, ‘ On the Nature of the Nature of Law’ (2012) 98 Archiv
für Rechts-​und Sozialphilosophie 457.
2
See John Gardner, ‘The Legality of Law’ (2004) 17 Ratio Juris 168.
3
See Neil MacCormick, Institutions of Law (Oxford University Press 2007); Kenneth
M. Ehrenberg, ‘Defending the Possibility of a Neutral Functional Theory of Law’ (2009) 29 Oxford
Journal of Legal Studies 91; Kenneth M. Ehrenberg, The Functions of Law (Oxford University
Press 2016).
4
See Leslie Green, ‘The Functions of Law’ (1998) 12 Cogito 117.
5
See Risto Hilpinen, ‘Authors and Artifacts’ (1993) 93 Proceedings of the Aristotelian Society 155.
vi

viii Editors’ Introduction

“essential” function.6 Randall Dipert instead frames the role of intentions
in the ontology of artifacts in historical terms—​namely, by highlighting the
connection that objects of this sort have with a “deliberative” history eventu-
ally rooted in human intentions and activities—​and another kind of histor-
ical approach has been framed on evolutionary grounds, for example, by Beth
Preston.7 Further, action-​oriented theories of artifacts, like that advocated
by Wybo Houkes and Pieter E. Vermaas, underline the connection between
the author’s intention and use, showing that an account of the ontology of
artifacts depends on the “use plan” for which an artifact is built.8 Finally,
artifacts have been investigated in their abstract dimension, particularly in
connection with fictions, for example by Amie Thomasson.9
Even if significant recent work in legal theory has been inspired by the
theory of artifacts, there is still no comprehensive treatment of the various
implications of the claim that philosophical investigations concerning artifacts
can improve our understanding of the law.10 This volume attempts to remedy
this gap in the literature on legal theory. In doing so, the volume seeks to
enrich the ongoing legal-​theoretical debates with essays by some of the most
important participants in these debates that explore how the idea of law’s
artifactuality informs and otherwise bears on their respective positions. The
rationale of this volume is, thus, to present the first comprehensive collection
of papers attempting to fully explore and evaluate the idea that law is an arti-
fact and its important implications for legal theory.
The volume begins with the foundational question of identifying the
methodological consequences of law’s artifactuality for the theory of law.
In “Legal Positivism about the Artifact Law: A Retrospective Assessment,”
Brian Leiter argues that the artifactuality of law entails that law cannot
have essential attributes (not even functional ones) and thus defends a

See Lynne R. Baker, ‘The Ontology of Artifacts’ (2004) 7 Philosophical Explorations 99.
6

See Randall Dipert, Artifacts, Art Works, and Agency (Temple University Press 1993); Beth
7

Preston, ‘Why is a Wing Like a Spoon? A Pluralist Theory of Function’ (1998) 95 The Journal of
Philosophy 215; Beth Preston, ‘Philosophical Theories of Artefact Function’ in Anthonie Meijers
(ed.), Philosophy of Technology and Engineering Sciences (Elsevier 2009).
8
See Wybo Houkes and Pieter E. Vermaas, Technical Functions: On the Use and Design of
Artifacts (Springer 2010).
9
See Amie L. Thomasson, Fiction and Metaphysics (Cambridge University Press 1999).
10
Some works about the relevance of the theory of artifacts for law are: Luka Burazin, ‘Can
There Be an Artifact Theory of Law?’ (2016) 29 Ratio Juris 385-​401, Jonathan Crowe, ‘Law as an
Artifact Kind’ (2014) 40 Monash University Law Review 737-​757, Kenneth M. Ehrenberg, Functions
of Law (Oxford University Press 2016), Corrado Roversi, ‘Legal Metaphoric Artifacts’ in Bartosz
Brożek, Jerzy Stelmach and Łukas Kurek (eds.), The Emergence of Normative Orders (Copernicus
Center Press 2015) 215-​280. See also Mark C. Murphy, ‘Two Unhappy Dilemmas for Natural Law
Jurisprudence’ (2015) 60 The American Journal of Jurisprudence 121-​141 at 124-​127.
 Editors’ Introduction ix
metaphysically-​deflated version of legal positivism as the theory that best
captures Hart’s benchmark for theoretical adequacy. In “Law as a Malleable
Artifact,” Frederick Schauer argues that the artifactuality of law entails that
the content of the concept of law is determined by contingent contextual
considerations that call for a continuous process of creation and re-​creation of
this concept. On his view, both descriptive and prescriptive approaches to the
concept of law are legitimate and complementary: the first attempts to under-
stand what the concept of law is in a given context, the second to prescribe
how that concept should be understood and possibly changed.
The artifactuality of law has a methodological bearing not only on legal
theory but also on legal science in general. In “Law, Fiction, and Reality,”
Andrei Marmor argues that law is (like fictions and games) an intangible
compound artifact that creates closed prefixed contexts by elaborating on
David Lewis’s distinction between prefixed and non-​prefixed statements. It
follows from this characterization of law that genuine disagreements about
what law is are not possible because collective acceptance is constitutive of
what artifacts are. This, of course, entails that people cannot be mistaken
about the essential features of law, but it does not entail that disagreements
about the internal structure of law are impossible. Kevin Toh takes up a similar
question in his “Law, Morality, Art, the Works,” where he argues that, even if
we assume that laws are artificial creations, we do not necessarily have to trace
the truth conditions of judgments of legal validity to behavioral or psycho-
logical facts. By applying Kendall Walton’s theory of implied fictional truths,
he shows that there is a third way between psychologism and Dworkinian
principlism.
After this methodological discussion, the second part of the book focuses
on the ontology of law as an artifact. In “On the Artifactual—​and Natural—​
Character of Legal Institutions,” Corrado Roversi analyses several possible
models of the ontology of artifacts as applied to the law, and puts forward a
conception of artifacts in terms of their “deliberative histories,” along the lines
introduced by Randall Dipert for works of art. By drawing on this theory,
Roversi shows that a theory of law as an artifact can act as a bridge between
legal positivism and legal realism and, when combined with some contem-
porary findings about conceptual metaphors, can also account for some
intuitions of natural law theory. In “Legal Systems as Abstract Institutional
Artifacts,” Luka Burazin shows that the emergence of law is grounded on a
social practice based on a we-​mode collective recognition of a social norm
defining the status of officials; however, he argues, recognition is necessary
but not sufficient for the existence of a legal system because, without a sig-
nificant degree of success and effectiveness in the actual behavior of people,
recognition could create nothing more than an abstract set of concepts. With
x

x Editors’ Introduction
Kenneth Einar Himma’s “The Conceptual Function of Law: Law, Coercion,
and Keeping the Peace,” the focus of discussion shifts from the need for rec-
ognition to the problem of function. Himma considers the issue of whether,
like other artifact-​types, law has a conceptual function that is performed by
all conceptually possible legal systems, arguing that the conceptual function
of law is to keep the peace so as to make societal living possible. Moreover,
Himma argues that law performs this function by backing some norms
with authorized coercive enforcement mechanisms, thus drawing a neces-
sary connection between law and coercion on the grounds of law’s artifactual
nature.
The third part of the book deals with the bearing that an artifact theory
of law can have on the problem of law’s normativity. In his “Obligations
from Artifacts,” Brian Bix raises the crucial question of how legal systems
conceived as artifacts can provide moral reasons for actions—​a question that
he conceives as a variant of how we can derive normative conclusions from
descriptive premises. Bix considers the views advanced by several authorita-
tive contemporary legal theorists in connection with this question, and in
the end concludes that the reason-​giving nature of law, when coupled with
its artifactual nature, is still one of the most persistent problems for legal
philosophy. In “Law Is an Institution, an Artifact, and a Practice,” Kenneth
Ehrenberg attempts to solve this problem by showing that, if we conceive
law in terms of abstract artifacts, then we are able to understand how the
practice of officials can be normative without any violation of Hume’s law,
because artifacts come with an inbuilt normativity regulating their recogni-
tion. Moreover, Ehrenberg argues, law is an institutionalized abstract arti-
fact, namely an artifact built to create and manipulate reasons for action.
The connection between artifacts and reasons is also at the core of Veronica
Rodriguez Blanco’s “Processes and Artifacts: The Principles are in the Author
Herself.” By elaborating on Elizabeth Anscombe’s concept of intention and
on Aristotle’s distinction between actuality and potentiality, Rodriguez Blanco
argues that the nature of any artifact can accurately be understood only in
the light of practical reason. This entails explicating why authors design and
use it, as well as identifying the way in which authors order their actions to
achieve their ends. As a consequence, legal systems as artifacts must be under-
standable by their citizens in light of the “good-​making” characteristics that
law-​makers intended to produce.
The final part of the book focuses on some caution or skepticism about the
idea that law, legal systems, and legal institutions can fruitfully be conceived
as artifacts. In his “A Strange Kind of Artifact,” Giovanni Tuzet argues that
law is, if artifactual, a strange kind of abstract and normative artifact that
is not created by any individual and hence is not reducible to anyone’s
 Editors’ Introduction xi
intentions. Moreover, he argues, if we conceive of law and legal institutions as
artifacts, we cannot avoid the circularity that emerges between claims about
the function and the nature of law. In Tuzet’s view, however, this circularity
is not necessarily vicious, as it points instead to a necessary integration of
answers in addressing law’s ontology. Finally, Dan Priel’s “Not All Law Is
an Artifact: Jurisprudence Meets the Common Law,” argues that the idea
of law’s artifactuality is based on a set of ideological assumptions shared by
contemporary legal positivism and natural law theory, namely, that law is an
instrument designed by humans to achieve moral improvement. In Priel’s
view, this ideology is fit to explain law as an outcome of legislation, but it
cannot account for common law or customary law, as it conveys a rather one-​
dimensional view of the practice legal philosophers aim to describe.
The essays collected in the four parts of this volume—​ methodology,
ontology, normativity, and skepticism—​are not, of course, meant to be an
exhaustive treatment of all the possible issues and conceptions that can be
connected with the idea of law’s artifactuality. They do, however, show the
far-​ranging and deep implications this idea can have. Despite its seeming ob-
viousness, the artifactuality of law can have a significant impact on the way
we conceive of legal institutions, legal systems, legal science, and legal theory.
We hope this collective work will give the reader the analytical tools to deter-
mine whether this impact is coherent with what the law is, in fact, and what
it ought to be.
Luka Burazin
Kenneth Einar Himma
Corrado Roversi
xi
 List of Contributors

Brian H. Bix is the Frederick W. Thomas Professor of Law and Philosophy at

the University of Minnesota. He holds a DPhil (doctorate) from Balliol College,
Oxford University and a JD from Harvard University. He teaches in the areas of
jurisprudence, contract law, family law, and constitutional law. His publications in-
clude Jurisprudence: Theory and Practice (7th edn., Sweet & Maxwell 2015), Oxford
Introductions to U.S. Law: Family Law (Oxford University Press 2013), Contract
Law: Rules, Theory, and Context (Cambridge University Press 2012), A Dictionary
of Legal Theory (Oxford University Press 2004), and Law, Language, and Legal
Determinacy (Oxford University Press 1993). He is a Member of the Bars of the States
of Minnesota, Connecticut, and Massachusetts, and a Member of the American Law
Institute.
Luka Burazin is assistant professor at the University of Zagreb, Faculty of Law and lec-
turer at the masters program of the Tarello Institute for Legal Philosophy (University
of Genoa). He has published a number of papers in legal theory and philosophy of
law and co-​edited the book Law and State: Classical Paradigms and Novel Proposals
(Peter Lang Publishing, Frankfurt am Main 2015). He is co-​editor of Revus—​Journal
for Constitutional Theory and Philosophy of Law.
Kenneth M. Ehrenberg is currently Reader in Public Law and Legal Theory at the
University of Surrey, School of Law, having moved there in 2017 from the University
of Alabama, Department of Philosophy. His 2016 book, The Functions of Law (also
published by Oxford University Press), advances an artifactual (and institutional)
theory of the ontology of law, as well as a methodological argument that its nature is
best further understood in terms of the social functions it performs.
Kenneth Einar Himma lectures at the School of Law and the Information School at
the University of Washington. He has published more than 100 articles in philosophy
of law, information ethics, philosophy of religion, applied ethics, bioethics, and phil-
osophy of mind. He is author of Morality and the Nature of Law (Oxford University
Press forthcoming). He is an editor (with Matt Adler) of The Rule of Recognition and the
US Constitution (Oxford University Press 2009), an associate editor (Jules Coleman
and Scott Shapiro eds.) of The Oxford Handbook of Jurisprudence and Philosophy
of Law (Oxford University Press 2004), editor of The Nature of Law: Philosophical
Issues in Conceptual Jurisprudence and Legal Theory (Foundation Press 2011), and
editor (with Herman Tavani) of The Handbook of Information and Computer Ethics
(Wiley 2008).
Brian Leiter is Karl N. Llewellyn Professor of Jurisprudence and Director of the
Center for Law, Philosophy, and Human Values at the University of Chicago. He
is the author of Naturalizing Jurisprudence (Oxford University Press 2007), Why
xvi

xiv List of Contributors

Tolerate Religion? (Princeton University Press 2013), and Nietzsche on Morality (2nd
edn., Routledge 2015). He is also the founding co-​editor of Oxford Studies in the
Philosophy of Law.
Andrei Marmor is the Jacob Gould Schurman Professor of Philosophy and Law at
Cornell University. Prior to joining Cornell in 2015, he was Professor of Philosophy
and Maurice Jones Jr. Professor of Law at the University of Southern California. His
research interests span philosophy of law; moral, social, and political philosophy;
and philosophy of language. Marmor has published dozens of articles, six book
monographs, and a number of edited volumes. His most recent books include Social
Conventions: From Language to Law (Princeton University Press 2009), Philosophy of
Law (Princeton University Press 2011), and The Language of Law (Oxford University
Press 2014). His books and articles also appeared in numerous translations, including
in Chinese, Spanish, Portuguese, Hebrew, and Italian. Marmor is the founding editor
of the Journal of Ethics and Social Philosophy, and the editor of several important
volumes in legal philosophy, including, most recently, The Philosophical Foundations
of Language in the Law (with Scott Soames, Oxford University Press 2011), and The
Routlege Companion to Philosophy of Law.
Dan Priel is associate professor at Osgoode Hall Law School. He has published
articles in legal theory, tort law, and restitution, among other subjects. His current
research interests are focused on ways of connecting currently popular jurisprudential
theories to political theory as well as to other interdisciplinary perspectives, especially
those coming from the natural sciences and engineering.
Veronica Rodriguez-​Blanco is Professor of Moral and Political Philosophy
(Jurisprudence) at the University of Surrey Centre for Law and Philosophy, UK. She
studied law and legal philosophy at Oxford University (MJur) and the University of
Cambridge (PhD). She is the author of numerous articles, the edited books Dignity in
the Legal and Political Philosophy of Ronald Dworkin (Oxford University Press forth-
coming), Reasons and Intentions in Law and Practical Agency (Cambridge University
Press 2015), and the monograph Law and Authority Under the Guise of the Good (Hart
Publishing 2014, paperback 2017). She has been awarded fellowships and grants
from the British Academy, the Alexander Von Humboldt Foundation, the European
University Institute (Fernand Braudel Fellow), FAPERJ, Cambridge Overseas Trust,
and the British Council. She is co-​editor of the journal Jurisprudence: An International
Journal of Legal and Political Thought.
Corrado Roversi is Assistant Professor in Legal Philosophy at the University of
Bologna. He holds a PhD in analytic philosophy and the general theory of law
(awarded by the Università Statale in Milan) and has spoken at several international
conferences and seminars. He is assistant editor of Ratio Juris (Oxford, Wiley-​
Blackwell) and has worked on the project A Treatise of Legal Philosophy and General
Jurisprudence (Berlin, Springer), of which he has edited the last volume (along with
Enrico Pattaro), titled Legal Philosophy in the Twentieth Century: The Civil Law
World (2016). His publications include: “Constitutive Rules in Context,” Archiv für
 List of Contributors xv
Rechts-​und Sozialphilosophie (2010); “On Constitutive Normativity,” in New Essays
on the Normativity of Law (Hart Publishing 2011); “Acceptance Is Not Enough,
but Texts Alone Achieve Nothing: A Critique of Two Conceptions of Institutional
Ontology,” Rechtstheorie (2012); “How Social Institutions Can Imitate Nature,”
Topoi (2015).
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at
the University of Virginia. Formerly for nineteen years the Frank Stanton Professor
of the First Amendment at Harvard University and a Fellow of the American
Academy of Arts and Sciences, he is the author of six books, including Playing By the
Rules: A Philosophical Examination of Rule-​Based Decision-​Making in Law and in Life
(Clarendon/​Oxford, 1991), Profiles, Probabilities, and Stereotypes (Harvard University
Press 2003), Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard
University Press 2009), and, most recently, The Force of Law (Harvard University
Press 2015).
Kevin Toh teaches in the Faculty of Laws at University College London. He pre-
viously taught in the philosophy departments of San Francisco State University
and Indiana University in Bloomington, and has held visiting fellowships at the
Institute for Advanced Studies in the Humanities at the University of Edinburgh, the
University of Texas at Austin School of Law, and University College, University of
Oxford. He is the author of a number of articles in philosophy of law.
Giovanni Tuzet studied law and philosophy in Turin and Paris and wrote his PhD
thesis on Peirce’s theory of inference. Formerly post-​doc researcher at the universities
of Lausanne and Ferrara, he is presently Associate Professor of Philosophy of Law at
Bocconi University in Milan, where he teaches Evidence and Economic Analysis of
Law. His areas of interest include epistemology, pragmatism, argumentation theory,
philosophy of law, and economic analysis of law.
xvi
 PART I
METHODOLOGY
2
 1
Legal Positivism about the Artifact Law
A Retrospective Assessment

Brian Leiter*

1. Introduction
Hans Kelsen and H.L.A. Hart, the two giants of twentieth-​century jurispru-
dence, are long dead. Ronald Dworkin, Hart’s most persistent critic, passed
away several years ago. John Finnis, our leading natural law theorist, has
recently issued his collected papers and a second edition of his 1980 book
Natural Law and Natural Rights. Joseph Raz, Hart’s torch-​bearer, long ago
stopped writing primarily about issues in general jurisprudence, in large part
because he thought (correctly in my view) that most of the main issues had
been settled (as best as such issues can be settled, about which more below).
Although academic life, in the modern research university, continues to
follow Max Weber’s century-​old diagnosis of increasing specialization, now
seems a particularly apt moment to reflect more synoptically upon what we
learned from the legal philosophy of the past century given that the major
contributors have, as it were, finished their contributions, and almost all re-
cent work on these topics reads as footnotes, sometimes long and tedious
footnotes, to their contributions, especially Hart’s.1
* Earlier versions of portions of this material were presented to the ​work-​in-​progress luncheon at the
University of Chicago Law School in December 2013; as a keynote address at the annual meeting of the
Australasian Society of Legal Philosophy at the University of Sydney in August 2013; as the Mary Oliver
Woods Lecture in the Department of Philosophy & Religious Studies at Western Illinois University in
September 2010; and at a session on “Legal Positivism: For and Against” at the annual meeting of the
Association of American Law Schools in New Orleans in January 2010. I am grateful for questions and
challenges on all these occasions, and should thank, especially, Tom Campbell, Jonathan Crowe, Dale
Smith, and Michael Stokes. I also benefited from discussion of some of these issues with Max Etchemendy,
and from his comments, and those of Luka Burazin and Ken Himma, on the penultimate draft. Finally,
I thank Taylor Coles, University of Chicago Law School class of 2018, for research assistance.
1
I am hopeful that the new English translation of Alf Ross’s On Law and Justice, forthcoming
from Oxford University Press, will effect a shift in philosophical interests about law in Anglophone

Law as an Artifact. First Edition. Edited by Luka Burazin, Kenneth Einar Himma, and Corrado
Roversi. Chapter 1 © Brian Leiter 2018. Published 2018 by Oxford University Press.
Another Random Scribd Document
with Unrelated Content
 Statistics - Course Outline
Third 2021 - University

Prepared by: Professor Jones

Date: August 12, 2025

Methodology 1: Interdisciplinary approaches

Learning Objective 1: Key terms and definitions
• Statistical analysis and interpretation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Learning Objective 2: Case studies and real-world applications
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 2: Diagram/Chart/Graph]
Learning Objective 3: Statistical analysis and interpretation
• Study tips and learning strategies
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Learning Objective 4: Assessment criteria and rubrics
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Learning Objective 5: Fundamental concepts and principles
• Interdisciplinary approaches
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 5: Comparative analysis and synthesis
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 6: Diagram/Chart/Graph]
Remember: Comparative analysis and synthesis
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Case studies and real-world applications
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Example 8: Experimental procedures and results
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Ethical considerations and implications
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Abstract 2: Best practices and recommendations
Practice Problem 10: Best practices and recommendations
• Critical analysis and evaluation
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Historical development and evolution
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 12: Diagram/Chart/Graph]
Key Concept: Literature review and discussion
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 13: Key terms and definitions
• Experimental procedures and results
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Key terms and definitions
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Theoretical framework and methodology
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Statistical analysis and interpretation
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Key Concept: Current trends and future directions
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Critical analysis and evaluation
• Study tips and learning strategies
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 19: Statistical analysis and interpretation
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Exercise 3: Problem-solving strategies and techniques
Remember: Experimental procedures and results
• Key terms and definitions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Practice Problem 21: Learning outcomes and objectives
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 22: Diagram/Chart/Graph]
Practice Problem 22: Historical development and evolution
• Research findings and conclusions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 23: Diagram/Chart/Graph]
Remember: Assessment criteria and rubrics
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
[Figure 24: Diagram/Chart/Graph]
Definition: Interdisciplinary approaches
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Problem-solving strategies and techniques
• Comparative analysis and synthesis
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Literature review and discussion
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Assessment criteria and rubrics
• Case studies and real-world applications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Case studies and real-world applications
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Interdisciplinary approaches
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Unit 4: Comparative analysis and synthesis
Remember: Interdisciplinary approaches
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Definition: Ethical considerations and implications
• Research findings and conclusions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Remember: Best practices and recommendations
• Current trends and future directions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Definition: Literature review and discussion
• Fundamental concepts and principles
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
[Figure 34: Diagram/Chart/Graph]
Key Concept: Experimental procedures and results
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Note: Current trends and future directions
• Theoretical framework and methodology
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Fundamental concepts and principles
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 37: Ethical considerations and implications
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 38: Diagram/Chart/Graph]
Important: Critical analysis and evaluation
• Best practices and recommendations
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Formula: [Mathematical expression or equation]
Key Concept: Interdisciplinary approaches
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 40: Diagram/Chart/Graph]
Conclusion 5: Study tips and learning strategies
Important: Key terms and definitions
• Historical development and evolution
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Key Concept: Historical development and evolution
• Fundamental concepts and principles
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Important: Interdisciplinary approaches
• Comparative analysis and synthesis
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Remember: Literature review and discussion
• Learning outcomes and objectives
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
Key Concept: Key terms and definitions
• Literature review and discussion
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Practice Problem 45: Statistical analysis and interpretation
• Assessment criteria and rubrics
- Sub-point: Additional details and explanations
- Example: Practical application scenario
Definition: Ethical considerations and implications
• Ethical considerations and implications
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Key Concept: Learning outcomes and objectives
• Problem-solving strategies and techniques
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Formula: [Mathematical expression or equation]
[Figure 48: Diagram/Chart/Graph]
Practice Problem 48: Best practices and recommendations
• Research findings and conclusions
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Example 49: Learning outcomes and objectives
• Practical applications and examples
- Sub-point: Additional details and explanations
- Example: Practical application scenario
- Note: Important consideration
Welcome to our website – the perfect destination for book lovers and
knowledge seekers. We believe that every book holds a new world,
offering opportunities for learning, discovery, and personal growth.
That’s why we are dedicated to bringing you a diverse collection of
books, ranging from classic literature and specialized publications to
self-development guides and children's books.

More than just a book-buying platform, we strive to be a bridge

connecting you with timeless cultural and intellectual values. With an
elegant, user-friendly interface and a smart search system, you can
quickly find the books that best suit your interests. Additionally,
our special promotions and home delivery services help you save time
and fully enjoy the joy of reading.

Join us on a journey of knowledge exploration, passion nurturing, and

personal growth every day!

ebookmasss.com