The Internal Aspect of Social Rules

Perry, Adam

doi:10.1093/ojls/gqu017

Cited by 8 publications

(6 citation statements)

References 2 publications

(2 reference statements)

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“…That is to say, it is a rule that exists because law-applying officials generally accept it and conform to it. 83 From this second point, it follows that the Supreme Court, and even judges as a whole, cannot unilaterally alter the rule of recognition. 84 They need the cooperation, or at least the acquiescence, of other lawapplying officials.…”

Section: Judges Powers and Recognitionmentioning

confidence: 99%

The Quasi-Entrenchment of Constitutional Statutes

Ahmed¹,

Perry²

2014

C.L.J.

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The British constitution is famously unentrenched: constitutional laws are not intrinsically more difficult to override than ordinary laws. However, in the largely overlooked 2012 case of H v Lord Advocate, the Supreme Court said that the Scotland Act 1998 cannot be impliedly repealed due to its "fundamental constitutional" status. Unless judicial thinking changes, courts in the future may treat constitutional statutes, like the Scotland Act, as capable only of express repeal, making such statutes "quasi-entrenched". In this article, we argue that, as a judicial innovation, the quasi-entrenchment of constitutional statutes lacks a sound legal basis. Parliament can make its intention to repeal a constitutional statute clear without making it express, and judges cannot, on their own initiative, ignore Parliament's clear decision to repeal even a constitutional statute.

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Section: Judges Powers and Recognitionmentioning

confidence: 99%

The Quasi-Entrenchment of Constitutional Statutes

Ahmed¹,

Perry²

2014

C.L.J.

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“…100, 113–114). For two further independent arguments for the view that much of legal discourse involves a form of normative pretense that is at least analogous to discourse about fictions, see Toh (forthcoming) and Perry (2015).…”

Section: Notesmentioning

confidence: 99%

Mere formalities: fictional normativity and normative authority

Wodak

2019

Can. J. of Philosophy

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It is commonly said that some standards, such as morality, are ‘normatively authoritative’ in a way that other standards, such as etiquette, are not; standards like etiquette are said to be ‘not really normative’. Skeptics deny the very possibility of normative authority, and take claims like ‘etiquette is not really normative’ to be either empty or confused. I offer a different route to defeat skeptics about authority: instead of focusing on what makes standards like morality special, we should focus on what makes standards like etiquette ‘not really normative’. I defend a fictionalist theory on which etiquette is ‘not really normative’ in roughly the same way that Sherlock is ‘not really a detective’, and show that fictionalism about some normative standards helps us explain the possibility of normative authority.

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“…The problem is that there is a counterexample, introduced by G. J. Warnock and reformulated and repeated dozens of times since, in which these two conditions are met but where no rule exists (see Warnock 1971, 45-6, 61-5;cf. Marmor 2001, 3;2009, 14-5;Perry 2015;Shapiro 2011, 103-4). The vast majority of philosophers who discuss this problem in print accept it as a decisive refutation of the practice theory.…”

Section: Introductionmentioning

confidence: 99%

“…Warnock (1971, 45-6, 61-5) nearly fifty years ago. 17 Since then, it has been endorsed and repeated by dozens of philosophers, including Andrei Marmor (2001, 3;2009, 14-5) and Scott Shapiro (2011, 103-4; also see Perry 2015). And with good reason.…”

Section: Introductionmentioning

confidence: 99%

In Defense of Hart’s Supposedly Refuted Theory of Rules

Kaplan

2021

Ratio Juris

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H. L. A. Hart's "practice theory" of rules is widely thought to face two problems: (1) It fails to account for the normativity of law and (2) it is susceptible to a decisive counterexample dating back to Warnock (1971). In this paper, I offer solutions to both problems. In response to (2), I appeal to an old, but underappreciated, distinction made by Rawls (1955) and argue that the counterexample is no counterexample at all. In response to (1), I apply a newly popular distinction regarding the nature of law's normativity and argue that Hart's practice theory has no problem accounting for the normativity of law.

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The Internal Aspect of Social Rules

Cited by 8 publications

References 2 publications

The Quasi-Entrenchment of Constitutional Statutes

The Quasi-Entrenchment of Constitutional Statutes

Mere formalities: fictional normativity and normative authority

In Defense of Hart’s Supposedly Refuted Theory of Rules

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