It is often said that natural law and interpretive perspectives of adjudication are incompatible with the notion of judicial law-making—in contrast to positivist and legal realist perspectives, which are hostile to the declaratory theory. One must either accept the declaratory theory or accept that judges make law, but one cannot accept both views. This article draws upon the jurisprudence of H.L.A. Hart, Karl Llewellyn, Lon Fuller, and Ronald Dworkin to push against the idea that these conceptions of the common law judicial method are fundamentally discordant. It is argued that, properly understood, the declaratory theory can be reconciled with the notion of judicial law-making.

This lecture considers conserving and upholding Anishinaabe law as it relates to the more-than-human world. It suggests that we must continually renew our broadest legal commitments to protect and preserve what sustains us. Protecting clans and the animals from which they derive is close to the heart of Anishinaabe law (ode’naakonige). This law is embodied through Anishinaabe treaties with our evolutionary progenitors, our clan relatives. These treaties with the more-than-human world were incorporated into treaties with other First Nations. From an Anishinaabe perspective, these obligations were, in turn, eventually imported into treaties with the Crown. Anishinaabe treaties with the more-than-human world continue to inform how Anishinaabe people practice constitutional law through consultation protocols, legislation, and participation in court proceedings.

In recent years, the controversy between legal positivists and their opponents has been reframed as a debate on whether ‘legal facts’—aka facts about the ‘content of the law’—are determined by social or moral facts. This new framing ought to be resisted, for two reasons. First, it is biased against legal positivism, by making it the default picture that the ‘content of the law’ is not a set of legal norms atomistically individuated—which is essential to positivism—but a set of ‘facts’ (“the fact that Jones legally ought to pay $35 to Smith”) which can then be grounded holistically in moral facts. Second, talk of ‘legal facts’ has been instrumental in the recent metaphysical turn in jurisprudence, especially in the growing literature on grounding and law. Jurisprudes—of all stripes—should resist it, as it impoverishes and obfuscates many important philosophical questions about law.

This paper addresses a well-worn topic: originalism, the theory that judges should interpret the U.S. Constitution in a manner consistent with the intent of its framers. I am interested in the real-world effects of originalism. The primary effect advanced by originalists is the tendency of the approach to constrain the discretion of judges. However, I identify another effect of originalism: the creation of official histories, a practice that imposes a hidden tax on society. Another question I consider is whether originalism should be considered a methodology of analyzing the law or a perspective on the law; I argue that originalism is closer to a perspective than a methodology.

The traditional account of the criminal trial holds that its fundamental purpose is to search for the truth—that is, the truth of whether the accused factually committed the alleged crime. However, purely truth-seeking accounts, as well as more nuanced side-constraint and pluralist accounts, fail to adequately explain the relationship between the epistemic principles and those of political morality shaping the criminal trial. In response, this article proposes that we understand the criminal trial first and foremost in terms of its purpose as a public procedure concerned with the legitimate use of coercive state powers against a particular person. Specifically, the criminal trial is a procedure that calls upon the state to provide a public justification for exercising its criminal law powers to convict and punish the accused. This account preserves the importance of establishing factual guilt because doing so is an essential part of the state’s justificatory burden.

In the literature, the Rule of Law (ROL) is mainly explained, and its value justified, by reference to its support for a liberal conception of human agency. As such, the connection between the ROL and legitimacy is normally considered contingent if the conception of the ROL is thin. It can be rendered necessary, it seems, only by a substantive conception that incorporates other political ideals, notably democracy. Without recourse to such a move, this article defends a necessary ROL-legitimacy connection by exploring the ROL’s contribution to the task of pacification, which, I argue, is inherent in the claim of legitimacy. My interpretation re-orients the ROL’s foundational value from the liberal conception of human agency to politically inspired fear and summa mala. The paradigmatic shift is in line with the realism approach to political theory which derives and explains moral claims in political theories from considerations of basic political necessity.

Countermajoritarianism is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority (judges) to overrule laws that represent the will of the majority. The core claim of this view stresses the conflict between agents with a democratic and a non-democratic pedigree. I call this conflict the ‘pedigree problem’ of judicial review. Against countermajoritarianism, I argue that the pedigree problem does not affect some forms of judicial review: specifically, the judicial review that declares a norm inapplicable in a specific case due to the unconstitutional effects that this application brings about. Countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic. In order to justify this claim, I draw insights from legal interpretation literature, specifically, the distinction between ‘norm formulation’ and ‘norm’.

Some philosophers and legal theorists believe that certain fundamental normative phenomena cannot be adequately explained without appeal to second-order reasons—that is, reasons to act (or not to act) for certain reasons. Others are resistant to such an appeal. This resistance takes a robust form in the Credit Argument, which holds that, since we cannot act for a reason for a reason, the very idea of second-order reasons must be incoherent. In this paper, I do several things. Firstly, I clarify in just what sense the Credit Argument supposes it is not ‘possible’ to act for a reason for a reason. Secondly, I propose a novel typology of second-order reasons. Thirdly, using these insights, I demonstrate that the Credit Argument is weak at several points and should therefore be roundly rejected. This amounts to a partial defence of the appeal to second-order reasons in the explanation of fundamental normative phenomena.

Can Hartian positivism adequately explain disagreements, among U.S. officials, about the correct method of statutory interpretation? Ronald Dworkin influentially argued it cannot. Dworkin maintained that (1) debates about the correct method of statutory interpretation are ‘theoretical’ disagreements; and (2) Hartian positivism cannot explain theoretical disagreements, except by positing implausible confusion or disingenuity on the part of legal officials. I show here that (1) is false. A disagreement about the correct method of statutory interpretation need not involve a theoretical disagreement of any kind. It may instead involve a purely ‘denotational’ disagreement among officials—i.e., a disagreement about the denotation of a concept appearing in a criterion of legal validity that all officials accept. I argue that, since the U.S. statutory interpretation debate plausibly is a purely denotational one, it does not pose the difficulties for Hartian positivism that Dworkin and other critics have supposed.

How should legal theory address populist governance? This article assesses recent efforts to align populist legal theory with H.L.A. Hart’s positivism, particularly the claim that populists embrace a democratic version of the rule of recognition. It argues instead that the alliance is deceptive: Populists selectively rely on Hart, given that both endorse a static legal theory. It presents two arguments in support. The first, negative argument shows that populist aspirations to immediate popular sovereignty are at odds with Hartian grounds of legal authority. The second, positive argument draws on Hans Kelsen’s distinction between static and dynamic legal orders to reveal their deeper structural similarity: Populism and Hartian positivists likewise minimize official discretion and conceptualize law as a conduit for external political decisions. Clarifying this affinity exposes the risks of static legal theories in legitimating populist distortions and underscores the normative urgency of a dynamic understanding of legal order.

Simon Franz Ewers, in the pages of this journal, has recently undertaken a critique of my philosophical account of the holding of claim-rights. In this short response to Ewers, I defend that account against some significant misrepresentations or misapprehensions in Ewers’s article.