Comments for Jurisprudence

Comment on What is Real Law? by Brian Flanagan

Brian Flanagan — Thu, 05 Mar 2026 23:38:22 +0000

Yes, a dual character concept’s concrete and evaluative dimensions are autonomous but relate to the same category. In the case of law, such a structure implies that morality is intrinsic: unless some threshold moral value is reached, the category can be instantiated in only one of its two characteristic dimensions.

Actually, we think that you can see indications of law’s dual character in our practices of rule application as well as in our perceptions legal validity, see pages 11-12 of this working paper: https://ssrn.com/abstract=6048575

Comment on What is Real Law? by Guilherme Almeida

Guilherme Almeida — Thu, 05 Mar 2026 19:07:49 +0000

In reply to F. E. Guerra-Pujol.

Hi! Thanks a lot for engaging with our work!

The claim is not that there are two different concepts of law, but instead that there is a single concept of law that has this dual structure. The difference is subtle, but I think relevant. I explored this difference at length in this recent pre-print (the section about distinguishing dual character concepts from ambiguity): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5354679

Comment on What is Real Law? by F. E. Guerra-Pujol

F. E. Guerra-Pujol — Thu, 05 Mar 2026 14:43:17 +0000

Although the “xjur” approach is a refreshing change of pace, I am highly skeptical as to how pathbreaking or significant the work of Flanagan & Almeida really is once we peel away all their methodological bells and whistles. Why? Because if their ultimate conclusion is that there are two concepts of law — one procedural or superficial (something akin to positive law); the other substantive and deeper (more akin to natural law) — they have not moved the needle at all. They are just telling us what we already know!

Comment on How to Be an Anarchist Without Really Trying by Kenneth Ehrenberg

Kenneth Ehrenberg — Thu, 23 Oct 2025 15:05:10 +0000

Thanks so much for your kind words. I think you did a better job of explaining how Raz isn’t forced into philosophical anarchism than I did in the paper. I’m always curious of course whether there are more replies that I didn’t imagine. I hope perhaps some might appear in the comments?

Comment on Towards Nonhierarchical Public Authority by avihay dorfman alon harel

avihay dorfman alon harel — Tue, 26 Aug 2025 07:08:13 +0000

In his thorough and meticulous review of our book Thomas Bustamante provides two suggestions both of which, in our view, are valuable. They will certainly help to develop and refine our approach.
Our account in chapter 1 develops the concept of perspectivism, namely, the view that political authority is a non-hierarchical authority. Political authority rests on the convictions and values of the represented. The emphasis in this chapter is on the representatives who examine and subsume in their decisions the perspectives and the values of the represented. Perspectivism also implies accountability. To the extent that political authority replicates the perspectives of citizens, citizens are accountable for its decisions. Bustamante provides two related observations.
The first proposal of Bustamante is that:
Nonhierarchical authority requires more than “taking a perspective” and “attributing a view” to those represented; it demands also recognizing a prerogative (of those represented) to hold the representatives accountable for their decisions, exercising ex post control over such decisions. Public institutions must institute and secure actual processes for the exercise of that prerogative.
We agree and regard this as essential to the functioning of a legitimate political authority. The relations between the representative and the represented is a dynamic relation. The representatives are expected to adopt the viewpoint of those they represent, but this is not a one-off task; it demands an ongoing effort of adjustment and responsiveness.
The second proposal is to use our account to provide a richer and a more egalitarian understanding of interpretation. Bustamante proposes:
Dorfman and Harel’s nonhierarchical account of authority should offer a different account of the interpretation of a public authority’s pronouncements. An official may choose what concepts to utter and (often) what rights to protect. But it is up to the subjects, and arguably other institutions, to administer the content of these concepts and make explicit the further sets of commitments that uttering an authoritative pronouncement entails.
In our account of perspectivism we gave special attention to the role of legislatures. Bustamante urges us to examine the implications of our account for judges and the executive who interpret authoritative legal texts.
Bustamante’s comments are intimately related to each other. They draw attention to the fact that perspectivism should not be perceived as a unidirectional process in which representatives and officials are subsuming the perspective of those they serve. Instead, there is, and should be, an evolving discourse involving reciprocity of accommodation and responsiveness. We believe this is a very important observation which we hope to develop in the future

Comment on After Legal Positivism by Kailainathan Nadesu

Kailainathan Nadesu — Wed, 28 May 2025 06:17:18 +0000

Robert Alexy’s Dual Nature Theory of Law could be referred to and commented on.

Comment on The New Eliminativism by estevam tavares de freitas

estevam tavares de freitas — Sun, 21 Apr 2024 20:23:22 +0000

I believe Shapiro is not eliminativist, just because there is a chain of complex theoretical assumptions, even an agency theory that is kantian, from Bratman, as grounds for his ideas. You have to mix all these critical assumptions, while Scott Hershovitz renew the analytical tradition. More than realist, I understand a bit of pragmatism, jamesian’s one, especially because he does practical tests, to immediately solve concrete problems.

Comment on A Major Answer To The Major Questions Doctrine by El roam

El roam — Wed, 25 Jan 2023 22:47:40 +0000

In reply to David Driesen.

David:

So David, you do agree, that sometimes status are unclear. And if so, the court must turn to the intent of lawmaker (the Congress). But, that is what has been done in both cases as illustrated by me. In both cases, the court turned to the intent of Congress, in order to resolve ambiguity etc…. So, what is or was the problem then ?

Protecting properly from disasters, then you should address your complaints to the legislator. Not courts. Let them legislate properly, with the right focus, and fix things. What is it that you wanted from courts and judges ?

With all due respect, you mix lawyers with judges. The fact that lawyers can become judges, doesn’t project necessarily on work of one judge:

First of all, not every lawyer, is suitable and competent for being judge. But above all:

One Lawyer(speaking of absurdities) represents one party. His job is to act totally subjectively. He must faithfully represent his client, and only him. While:

If you haven’t noticed, a judge must impartially adjudicate and solve controversies between both parties.

That is hell of difference. Because the law, is basically impartial (as the judge). Means:

You must be impartial in your job, in order to understand the law (or what law says) contrary to one lawyer of course. Lawyer who is stuck in tunnel view:

How to win the case, for his client. Full stop!

Thanks

Comment on A Major Answer To The Major Questions Doctrine by David Driesen

David Driesen — Wed, 25 Jan 2023 22:32:07 +0000

I appreciate Ed Rubin’s generous review. In response to El Roam, i don’t argue that the Court must defer to agencies. Instead, I argue that the Court must follow the plain, albeit sometimes general, language of statutes. And if the statute is unclear, it must resolve statutory ambiguity by reference to the goals and policies of the enacting Congress. The major questions doctrine embodies an “unjustified hostility” to statutes seeking to protect us from disasters, because its “clear statement rule” allows the Court to avoid following the policies in statutes it should interpret. What the Court did in West Virginia was antithetical to the rule of law. The idea that “only courts know and understand” the law suggests that only the lawyers who happen to become judges understand the law. That’s patently absurd.

Comment on A Major Answer To The Major Questions Doctrine by El roam

El roam — Wed, 25 Jan 2023 18:40:49 +0000

The assertions and notions presented here are really baseless with all due respect. Fundamentally wrong.

And first, and generally speaking, there is greater principle than the so called separation of powers:

And it is, the rule of law. Every principle by the way, is relative one. But the rule of law ! No other principle can erode it. The proof (among others):

Well, despite separation of powers so called, the courts have power, to invalidate legislation.

And what is the law, only courts know and understand. No one else. Full stop! That was also the meaning of the founders. I quote from recent ruling, in the supreme court of Ohio (references omitted):

The idea that a court must defer to an agency determination is difficult to reconcile with these separation- of- powers concepts. When a court defers to an agency’s interpretation of the law, it hand to the executive branch the judicial authority “to say what the law is”. Mandatory deference also raises questions of judicial independence. I a case like this one, a court is charged with adjudicating a dispute between government agency and a private party. But how can the judiciary fairly decide the case when it turns over to one party conclusive authority to say what the law means? To do so would fly in the face of the foundational principle that “no man ought to be a judge in his own cause”.

End of quotation:

More specifically, in both cases presented here, it wasn’t about the interpretation of the court (let alone, personal one) but, the fact, the interpretation at issue (of the agencies) led to absurd. Was unreasonable. Couldn’t be reconciled with any method has to do with correct legal interpretation. In West Virginial that wasn’t the intent of Congress (” That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself “). In the case of ” Trinity” religion was totally marginal issue. But, the intent of Congress was different simply. Not to bar highly qualified employees (from coming to the US) but cheap labor. That was the evil Congress tried to fix, remedying and solving. In accordance with it, the interpretation should be construed.

Here to Ohio:

https://aboutblaw.com/6ey

Thanks