Books by Kenneth M Ehrenberg
Examines the functions of law, arguing that it is a tool created by people to serve the purpose o... more Examines the functions of law, arguing that it is a tool created by people to serve the purpose of creating new statuses that alter their rights and responsibilities toward each other, while harmonizing this with other understandings of law's functions
Reviews major theories of legal philosophy to examine their treatment of the functions of law, while offering a novel understanding of its ontology
Advances a theoretical justification for the importance of both conceptual and empirical work in the study of human legal activity
Papers by Kenneth M Ehrenberg
Jurisprudence, 2019
This replies to four comments on my 2016 book, printed in the same issue. One issue is the questi... more This replies to four comments on my 2016 book, printed in the same issue. One issue is the question of whether legal systems are always artefacts. I raise the possibility that legal systems could be created unintentionally but still be artefactual by-products of intentional action.
Philosophy and Phenomenological Research, 2020
The most influential theory of law in current analytic legal philosophy is legal positivism, whic... more The most influential theory of law in current analytic legal philosophy is legal positivism, which generally understands law to be a kind of institution. The most influential theory of institutions in current analytic social philosophy is that of John Searle. One would hope that the two theories are compatible, and in many ways they certainly are. But one incompatibility that still needs ironing out involves the relation of the social rule that undergirds the validity of any legal system (H.L.A. Hart's rule of recognition) to Searle's notion of codification: the idea that institutions need official declarations of their constitutive rules in order to enjoy the full benefits of institutions. The incompatibility arises from the fact that, in order to do its institutional work, the basic validity rule must be codified in Searle's sense—yet, given the particular role it has in legal positivism, it may be impossible to codify in the Searlean sense. In this paper I develop the incompatibility in detail, consider and reject consigning the basic validity rule to Searle's “Background” capacities that support institutional facts, and conclude that the best route to eliminating it while doing a minimum of damage to the two theories is to make a slight emendation to Searle's theory of institutions.
Metaphilosophy of Law, 2016
There is a problem that is presented to anyone claiming that law is a matter of social fact. If l... more There is a problem that is presented to anyone claiming that law is a matter of social fact. If law is completely explained by the facts of its creation, then it is difficult to justify the normative conclusions that law invites us to make, that it ought to be followed. If we agree with Hume that we cannot soundly make a normative conclusion based on merely descriptive premises, then we have to discover where in the otherwise descriptive premises of those social facts the norm is lurking. If it is even possible to draw such a conclusion, then it has to be explained how a normative conclusion could be truth-apt given the merely descriptive premises. One kind of normativity can be found within the institution of law itself. But this is a merely context-dependent normativity that can be re-described as further descriptive facts about the law. I argue that seeing the law as a genre of artifact exposes a bare form of normativity that is akin to those existing with communicated intentions such as requests. Artifacts signal their usability in a way that gives rise to a norm that we see the artifact as a member of the class to which it is supposed to belong. This doesn’t mean that we are limited to using the artifact in the way that it was intended; only that it doesn’t stop being a member of that class of thing just because we are using it in a way that its creator didn’t envision. Applying this idea to law means that the successful creation of a law gives rise to a norm to see the creation as an instance of law, which means its context-dependent norms are singled out for a certain kind of social emphasis. The result is a kind of two-level normativity that helps to answer the issue posed by Hume. While the conclusion that I ought to follow a given law is only sound when the law is authoritatively legitimate, the facts of the law’s creation contain the norm that it be recognized as law and as therefore potentially successfully creating the wider norms that are purported within the context.
Jurisprudence, 2016
Scott Shapiro's theory that law is a social plan is helpful in seeing law essentially as a tool o... more Scott Shapiro's theory that law is a social plan is helpful in seeing law essentially as a tool of human creation and as such is sympathetic to understanding law in terms of the social functions it performs, a method I argue for elsewhere. I focus here on two problems with the theory as presented. The planning theory does not adequately explain the persistence of law beyond the utility of those who implement it. Generally, plans can cease to exist as soon as those engaged in them have no more use for them. Laws however, must usually be declared invalid or otherwise nullified for them to have no further effect. Shapiro's use of self-certification to explain how law is differentiated from other forms of social planning is ad hoc and threatens circularity when he admits it to be a matter of degree. Both of these issues can be better solved by seeing law as an institutionalized abstract artifact, with a greater emphasis upon the nature of institutions doing much of the work done by the idea of planning.
Philosophical Foundations of the Nature of Law, 2013
Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal rea... more Joseph Raz argues that the law claims legal directives constitute reasons to exclude personal reasons for contrary action. I raise some considerations against his argument while admitting that we may treat directives as exclusionary: Raz’s reasoning neglects a failure of closure; novel choice-of-evils defenses to criminal accusations show that we are invited to act on our own reasons even when in conflict with the law; and anyone who believes that there are gaps in the law (as Raz does) must also allow that it cannot demand exclusion of our personal reasons. If the function of authority is to get individuals to comply better with reason than they would do if left on their own, it does not make sense for it to claim to preempt our contrary reasons and at the same time leave open spaces or catch-all exceptions that we must use our own devices to fill.
Reasons and Intentions in Law and Practical Agency, 2015
Oxford Journal of Legal Studies, Jan 1, 2009
I argue that there is methodological space for a functional explanation of the nature of law that... more I argue that there is methodological space for a functional explanation of the nature of law that does not commit the theorist to a view about the value of that function for society, nor whether law is the best means of accomplishing it. A functional explanation will nonetheless provide a conceptual framework for a better understanding of the nature of law. First I examine the proper role for function in a theory of law and then argue for the possibility of a neutral functional theory, addressing issues raised by Leslie Green, Stephen Perry, Michael Moore and John Finnis.
McGill Law Journal, 2015
In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusion... more In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact-finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon, 2006 SCC 57, 2 SCR 787. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting universal admissibility would be the best policy for an ideal jury. This paper uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact-finders’ more common epistemic capabilities push the epistemic context of the trial towards one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards.
Australian Journal of Legal Philosophy, Jan 1, 2011
I examine the impact of the presence of anarchists among key legal officials upon the legal posit... more I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system can continue to exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism.
International Journal of Law in Context, Jan 1, 2011
I argue that law is not best considered an essentially contested concept. After first explaining ... more I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria offered for essential contestation. I buttress this claim with the explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it would yield a greater understanding of uses of the concept to which it is applied. I then show that, even if law meets some basic criteria of essential contestation, applying the appellation does not helpfully illuminate the most general concept of law and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law.
Metaphilosophy, Jan 1, 2008
We sometimes say our moral claims are ‘‘objectively true,’’ or are ‘‘right, even if nobody believ... more We sometimes say our moral claims are ‘‘objectively true,’’ or are ‘‘right, even if nobody believes it.’’ These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that ‘‘steps outside’’ the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical metaethical theory can withstand his attacks, thereby defending the possibility of this kind of metatheoretical method and showing that the additional objectivity claims still make sense as external claims. Four interpretations of the additional objectivity claims can still be understood externally: as secondary properties, as arguing for some form of causal correspondence, as explaining error, and under Blackburn’s expressivism. In the end, Dworkin’s argument can be turned against itself.
This paper guides the reader through the use of functions in contemporary legal philosophy: in de... more This paper guides the reader through the use of functions in contemporary legal philosophy: in developing those philosophies and through methodological debates over their proper role. This paper is broken into two sections. In the first I canvass the role of functions in the legal philosophies of several mid to late twentieth century Anglo-American general jurisprudents whose theories are still common topics of discussion: Ronald Dworkin, H.L.A. Hart, Lon L. Fuller, John
Finnis, and Joseph Raz. In the second, I examine contemporary arguments over the role of functions in the methodology of legal philosophy.
Coherence: Insights from Philosophy, Jurisprudence and Artificial Intelligence, 2013
Under John Searle’s theory of institutional facts, the law can be understood both as an instituti... more Under John Searle’s theory of institutional facts, the law can be understood both as an institution governed by foundational documents and practices, and as a method for creating new institutions through the codification of the assignment of functions, usually of the form ‘X counts as Y in circumstances C’. The architect Christopher Alexander’s notion of pattern languages, schematic templates for problem-solving widely adopted by computer programmers, can be developed within a legal system as a coherence constraint on the assignment of functions such that codified legal solutions do not conflict with other legal solutions to related or distinct problems.
Albany Law Review, Jan 1, 2003
Loy. Poverty LJ, Jan 1, 1999
We now live in a world with unprecedented possibilities. Technology is quickly reaching the point... more We now live in a world with unprecedented possibilities. Technology is quickly reaching the point at which it will be within our grasp to cure any ailment: medical, psychological, or social. Yet we are already falling behind in the curative use of our newfound abilities. With our new technologies we have it within our means to feed the world and to eradicate sicknesses common only in developing countries. However, the use of these
Buff. L. Rev., Jan 1, 2007
Page 1. The Ideal and Non-Ideal in Behavior Guidance: Reflections on Law and Buddhism in Conversa... more Page 1. The Ideal and Non-Ideal in Behavior Guidance: Reflections on Law and Buddhism in Conversation with the Dalai Lama Kenneth M. EhrenbergI In a perfect society, where everyone is governed by the principles of compassion ...
Buffalo Law …, Jan 1, 2007
UMI, ProQuest ® Dissertations & Theses. The world's most comprehensive collectio... more UMI, ProQuest ® Dissertations & Theses. The world's most comprehensive collection of dissertations and theses. Learn more... ProQuest, A functional methodology for general jurisprudence. by Ehrenberg, Kenneth Mark, PhD, COLUMBIA UNIVERSITY, 2005, 0 pages; ...
Book Reviews by Kenneth M Ehrenberg
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Books by Kenneth M Ehrenberg
Reviews major theories of legal philosophy to examine their treatment of the functions of law, while offering a novel understanding of its ontology
Advances a theoretical justification for the importance of both conceptual and empirical work in the study of human legal activity
Papers by Kenneth M Ehrenberg
Finnis, and Joseph Raz. In the second, I examine contemporary arguments over the role of functions in the methodology of legal philosophy.
Book Reviews by Kenneth M Ehrenberg
Reviews major theories of legal philosophy to examine their treatment of the functions of law, while offering a novel understanding of its ontology
Advances a theoretical justification for the importance of both conceptual and empirical work in the study of human legal activity
Finnis, and Joseph Raz. In the second, I examine contemporary arguments over the role of functions in the methodology of legal philosophy.