Rule‐Scepticism Restated

Guastini, Riccardo

doi:10.1093/acprof:oso/9780199606443.003.0004

Cited by 54 publications

(12 citation statements)

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“…If it is conceded that all of the above is correct, it is necessary to conclude that it is impossible to draw a distinction between what is law, and what is not law; after all, just about anything could form part of the L r (Context) . Guastini refers to this as the indeterminacy of the legal system as such explaining that “law is indeterminate in the sense that it is not determinate what rules are expressed by legal sources and, in this sense, belong to the legal system” (Guastini , 144).…”

Section: The “Context”mentioning

confidence: 99%

“…Guastini highlights four types of situations, each showcasing the ambiguity of normative sentences: (a) Sometimes a normative sentence S is ambiguous in the strict sense for either syntactic or semantic reasons: One wonders whether it expresses the rule R 1 or the rule R 2 . (b) Sometimes everyone agrees that the normative sentence S expresses the rule R 1 , but one wonders whether it also expresses the rule R 2 or not. (c) Sometimes everyone agrees that the normative sentence S expresses the rule R 1 , but one wonders whether such a rule entails, or not, the rule R 2 . (d) Sometimes everyone agrees that the normative sentence S expresses the rule R 1 , but one wonders whether such a rule is defeasible (i.e., subject to unexpressed exceptions) or not. (Guastini , 145; internal footnotes omitted) In each of these types of situation, the legal rule fails to express the law with sufficient clarity on its own. The only way in which we can understand and make sense of the law in such cases is to read the legal rule in light of its context.…”

Section: The “Context”mentioning

confidence: 99%

“…Thus, due to the impossibility of ascertaining the full context, we can never conclusively ascertain what the law is in relation to a particular matter . To again adopt Guastini's useful terminology, we are here dealing with the indeterminacy of any particular rule ; that is, “the law is indeterminate in the sense that it is not determinate what cases fall under the scope of each rule” (Guastini , 144).…”

Section: The Law As a More Or Less Abstract Range Of Optionsmentioning

confidence: 99%

See 2 more Smart Citations

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

Svantesson

2013

Ratio Juris

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After proposing an alternative definition of what “law” (jurisprudential concept) is, this article demonstrates the impossibility of identifying “the law” (what law‐makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is a more or less abstract range of options. Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law‐makers. We need to remove the mystery that surrounds the law so as to provide for greater transparency. This transparency can be gained by requiring law‐makers to declare their inescapable biases where they influence their lawmaking.

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Section: The “Context”mentioning

confidence: 99%

Section: The “Context”mentioning

confidence: 99%

Section: The Law As a More Or Less Abstract Range Of Optionsmentioning

confidence: 99%

See 1 more Smart Citation

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

Svantesson

2013

Ratio Juris

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“…Rather, norms are brought into existence through interpretation of texts. This view has been adopted by the realist minority among legal theorists (Guastini 2011), but it is also accepted by many other legal theorists (notably following Hart 1961) as a way of explaining the resolution of hard cases in which vague or open-textured terms often get nonstandard interpretations.…”

Section: Introductionmentioning

confidence: 97%

Assessment sensitivity in legal discourse

Kristan

Vignolo

2017

Inquiry

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We explain three phenomena in legal discourse in terms of MacFarlane's assessmentsensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator's interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse as understood in light of that view and discourse about matters of taste and future contingents. Thus, if assessment-sensitive semantics provides a compelling account of discourse about matters of taste and future contingents, then it likewise provides a compelling account of those statements in legal discourse.

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“…I owe this point to Alex Latham. picture of legal interpretation (Guastini 2011)? The convergence among different authors on this point seems difficult to set aside.…”

mentioning

confidence: 99%

To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field

Sandro

2014

Problems of Normativity, Rules and Rule-Following

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Among the most common strategies underlying the so-called indeterminacy thesis is the following two-step argument: (1) that law is an interpretive practice, and that evidently legal actors more generally hold different (and competing) theories of meaning, which lead to disagreements as to what the law says (that is, as to what the law is); (2) and that, as there is no way to establish the prevalence of one particular theory of meaning over the other, indeterminacy is pervasive in law. In this paper I offer some reflections to resist this trend. In particular I claim that a proper understanding of law as an authoritative communicative enterprise sheds new light on the relation between the functioning of the law and our theories of interpretation, leading to what can be considered a neglected conclusion: the centrality of the linguistic criterion of meaning in our juridical interpretive practices. In the first part of the chapter I discuss speech-act theory in the study of law, assessing its relevance between alternative options. Then I tackle the 'to whom does the law speak?' question, highlighting the centrality of lay-people for our juridical practices. Lastly, I examine the consequences of this neglected fact for our interpretive theories.

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Rule‐Scepticism Restated

Cited by 54 publications

References 0 publications

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

Assessment sensitivity in legal discourse

To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field

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