Translated Works by Brian Bix
Resume / c.v. from April 2024
Bookmarks Related papers MentionsView impact
Diccionario de Teoría Jurídica (Traducción de A Dictionary of Legal Theory, de Brian H. BIX)
A menudo los representantes de las diversas corrientes de la teoría jurídica se enfrentan con la ... more A menudo los representantes de las diversas corrientes de la teoría jurídica se enfrentan con la dificultad de comprender a los colegas que pertenecen a otra tradición, debido al empleo de ciertos términos ajenos a su propio vocabulario. Este inconveniente suele erigir barreras importantes al momento de emprender discusiones académicas, lo cual no pocas veces culmina en una falta de comprensión y de estima recíprocas.
El propósito fundamental de este Diccionario de teoría jurídica es servir como un manual de traducción para favorecer la discusión y el efectivo intercambio de ideas entre los exponentes de diversas corrientes de la teoría del derecho. Al mismo tiempo, la obra se propone ofrecer una descripción del uso convencional de los términos e ideas básicas de diversas tradiciones iusfilosóficas, de un modo que sea accesible tanto para estudiantes de licenciatura que se inician en el estudio de la teoría del derecho, como para los profesores o investigadores que desean profundizar su conocimiento en la materia.
https://ru.juridicas.unam.mx:80/xmlui/handle/123456789/11543
Bookmarks Related papers MentionsView impact
Bookmarks Related papers MentionsView impact
Germán Sucar (ed.), Por qué Leer a Nietzsche Hoy? (forthcoming, Fontamara) (translated into Spanish), 2018
Bookmarks Related papers MentionsView impact
Legal Philosophy by Brian Bix
Analisi e Diritto, 2024
In "Legal Positivism: 5½ Myths," John Gardner argued that legal positivism should be understood o... more In "Legal Positivism: 5½ Myths," John Gardner argued that legal positivism should be understood only as a thesis about the validity of individual norms. This influential view has had the effect of discounting and marginalizing two other important questions about the separation or non-separation of law and morality: regarding the legal status of significantly immoral legal systems, and regarding the role of moral evaluation in the construction of theories about the nature of law. More importantly, there is far less attention now paid than there should be to the interesting theoretical question of the extent to which a position in favor of separation (or non-separation) on one topic entails, or at least strongly supports, a similar view on the other topics.
Bookmarks Related papers MentionsView impact
Most legal systems recognize authoritative legal rules based both on (some version of) reason and... more Most legal systems recognize authoritative legal rules based both on (some version of) reason and (some version of) choice. Reason is legal reasoning, doctrinal reasoning; “will” or “fiat” are the choices made by lawmakers among available options, including choices made by judicial lawmakers. Because law is the product of both reason and will, there will always be the potential – greater in some legal systems than others – that the two criteria will conflict, leading to uncertainty in what the legal truth on some matter lies, including the possibility that two contradictory propositions about the law will have equally (or at least comparably) strong claims to be correct. The purpose of the present work is not to offer any general claims – and certainly no revolutionary claims – about the nature of truth. “Truth” in law is particular; it is woven into the practice of law, and it is that practice which grounds the somewhat paradoxical claims here discussed. And I would not call those claims “unconventional.” as it is only articulating something that experienced practitioners already know at some level, even if they are not always conscious of it. The ultimate point is that, because of the conflicting sources of authority, truth in law is, in small ways – on the margins or in the background – unstable and unsettled, or at least subject to being unsettled.
Bookmarks Related papers MentionsView impact
The Oxford Handbook of American Philosophy (Cheryl Misak, ed.), 2008
Bookmarks Related papers MentionsView impact
This paper was presented (remotely) to Magna Græcia University, University of Catanzaro.
Th... more This paper was presented (remotely) to Magna Græcia University, University of Catanzaro.
The paper focuses on four topics (some suggested by Professor Massimo La Torre) connected with the American Legal Realism:
(1) Brian Leiter’s arguments about legal realism and contemporary jurisprudence: (a) that the American Legal Realists were best understood as philosophical naturalists; and (b) that analytical legal philosophy should similarly move to being entirely naturalistic. I also discuss, briefly, Dan Priel’s alternative naturalist approach.
(2) The argument associated with Frederick Schauer, but also with other theorists (e.g., Kenneth Einar Himma), that emphasizes coercion as the most important aspect of law (Schauer) or conceptually necessary for law (Himma).
(3) A contemporary variation of legal realism, which its advocates label “New Legal Realism.”
(4) Finally, I say a few words about the notion, common among American academics, that “we are all legal realists now.”
Bookmarks Related papers MentionsView impact
Notre Dame JL Ethics & Pub. Pol'y, 2003
Bookmarks Related papers MentionsView impact
Legal Theory, 1995
Conceptual analysis is an integral part of legal theory,1 but the nature and purpose of such inqu... more Conceptual analysis is an integral part of legal theory,1 but the nature and purpose of such inquiries are often not clearly stated. In this article, I attempt to elaborate upon some of the differing reasons for conceptual analysis and what consequences may follow from choosing one objective ...
Bookmarks Related papers MentionsView impact
University of Pennsylvania Law Review, 1998
Incommensurability is the claim that different choices, or differ-ent values underlying choices, ... more Incommensurability is the claim that different choices, or differ-ent values underlying choices, cannot be measured on a single met-ric.' The related, but different claim of incomparability is that there are items or choices of which it cannot sensibly be said that one is better than ...
Bookmarks Related papers MentionsView impact
Ratio Juris, 2007
Abstract. The article considers Robert Summers' new book (Summers 2006), in the context of S... more Abstract. The article considers Robert Summers' new book (Summers 2006), in the context of Summers' earlier work and the role of form and formalism in other jurisprudential discussions. While accepting the value of a form-centered approach to studying law, the ...
Bookmarks Related papers MentionsView impact
Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J. Postema (Thomas Bustamante and Thiago Lopes Decat, eds., Hart Publishing), 2020
Gerald Postema has made influential contributions to many parts of legal philosophy (as well a... more Gerald Postema has made influential contributions to many parts of legal philosophy (as well as moral philosophy, political philosophy, and the history of philosophy). This article focuses on the intersection of just two of those points of influence -- his critique of Ronald Dworkin’s work and with his equally important discussion of the role of conventions at the foundation of legal practice and legal theory – to consider some implications for the difficult question of truth in law.
Postema’s work, supplemented by the works of other scholars along similar lines, directs us towards important interlocking insights regarding the nature of law and the nature of legal truth. The emphasis on the shared, social, and institutional nature of law both raises and helps us to begin to respond to issues about how to understand what makes propositions about law true or false. In the article, Part I introduces Dworkin’s ‘Protestant approach’ and the critique it evoked from Postema (supplemented by points raised by Robert Cover and Sanford Levinson). Part II looks at Postema’s discussions about the conventional groundings of law, and explores how this offers both answer and further questions regarding the nature of legal truth.
Bookmarks Related papers MentionsView impact
Cosmos + Taxis, 2020
The article was part of a Festschrift for Susan Haack. It was published in Cosmos + Taxis, vol. ... more The article was part of a Festschrift for Susan Haack. It was published in Cosmos + Taxis, vol. 8 (5+6) in 2020.
Bookmarks Related papers MentionsView impact
A Companion to the Philosophy of Law and Legal Theory, 2010
Published in A Companion to the Philosophy of Law and Legal Theory
(2nd ed., Dennis Patterson, e... more Published in A Companion to the Philosophy of Law and Legal Theory
(2nd ed., Dennis Patterson, ed., Oxford: Wiley-Blackwell, 2010)
Bookmarks Related papers MentionsView impact
Published in Washington University Law Review, vol. 95, pp. 1035-1047 (2018)
Bookmarks Related papers MentionsView impact
Published in Revus (2017)
Bookmarks Related papers MentionsView impact
To appear in Lukar Burazin, Kenneth Einar Himma & Corrado Roversi (eds.), "Law as an Artifact" (f... more To appear in Lukar Burazin, Kenneth Einar Himma & Corrado Roversi (eds.), "Law as an Artifact" (forthcoming, Oxford, 2018)
Bookmarks Related papers MentionsView impact
This paper was presented as a Plenary Lecture at the 28th World Congress of the International As... more This paper was presented as a Plenary Lecture at the 28th World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR), “Peace Based on Human Rights.” University of Lisbon, July 2017.
The recognition and protection for human rights varies significantly across countries. Many countries purport to recognize human rights through their constitutions, statutes, or international treaties, but questions arise when the rights protected in practice vary, at least in some commentators’ views, from what the scope of the rights actually are, or should be. For those legal systems where human rights are not supported by conventional positive, one can ask: Can human rights norms be said to be part of the law even where there is no conventional social source? This topic is considered briefly, using the Nuremberg Trials as an example. In general, the connection between general moral standards and human rights complicates the already intricate problems relating to the relationship of conventional law and morality.
In connection with that basic question about the relationship of law and morality, the paper ultimately defends a view that is simultaneously simple, naïve, and radical (and goes back to H. L. A. Hart): that law is a sui generis form of normativity, a form of normativity of its own, that is not identical with or a subset of morality or any other normative system. Another way of putting the view would be to say that under this approach legal normativity in general, and legal propositions in particular, do not, by their nature, reduce to or equate to propositions of another type, nor do legal propositions, by their nature, purport to be propositions of another type. The paper defends this position against both the common contemporary view (by theorists like Joseph Raz) that law purports to make moral claims, and the recent position (taken by theorists like Mark Greenberg) that law simply is a subset of morality.
Bookmarks Related papers MentionsView impact
This paper was presented at the Boston University Law School Conference, "The Future of Law and E... more This paper was presented at the Boston University Law School Conference, "The Future of Law and Economics and the Contributions of Guido Calabresi" (in honor of his book, Guido Calabresi, "The Future of Law and Economics" (Yale, 2016))
Bookmarks Related papers MentionsView impact
Uploads
Translated Works by Brian Bix
El propósito fundamental de este Diccionario de teoría jurídica es servir como un manual de traducción para favorecer la discusión y el efectivo intercambio de ideas entre los exponentes de diversas corrientes de la teoría del derecho. Al mismo tiempo, la obra se propone ofrecer una descripción del uso convencional de los términos e ideas básicas de diversas tradiciones iusfilosóficas, de un modo que sea accesible tanto para estudiantes de licenciatura que se inician en el estudio de la teoría del derecho, como para los profesores o investigadores que desean profundizar su conocimiento en la materia.
https://ru.juridicas.unam.mx:80/xmlui/handle/123456789/11543
Legal Philosophy by Brian Bix
The paper focuses on four topics (some suggested by Professor Massimo La Torre) connected with the American Legal Realism:
(1) Brian Leiter’s arguments about legal realism and contemporary jurisprudence: (a) that the American Legal Realists were best understood as philosophical naturalists; and (b) that analytical legal philosophy should similarly move to being entirely naturalistic. I also discuss, briefly, Dan Priel’s alternative naturalist approach.
(2) The argument associated with Frederick Schauer, but also with other theorists (e.g., Kenneth Einar Himma), that emphasizes coercion as the most important aspect of law (Schauer) or conceptually necessary for law (Himma).
(3) A contemporary variation of legal realism, which its advocates label “New Legal Realism.”
(4) Finally, I say a few words about the notion, common among American academics, that “we are all legal realists now.”
Postema’s work, supplemented by the works of other scholars along similar lines, directs us towards important interlocking insights regarding the nature of law and the nature of legal truth. The emphasis on the shared, social, and institutional nature of law both raises and helps us to begin to respond to issues about how to understand what makes propositions about law true or false. In the article, Part I introduces Dworkin’s ‘Protestant approach’ and the critique it evoked from Postema (supplemented by points raised by Robert Cover and Sanford Levinson). Part II looks at Postema’s discussions about the conventional groundings of law, and explores how this offers both answer and further questions regarding the nature of legal truth.
(2nd ed., Dennis Patterson, ed., Oxford: Wiley-Blackwell, 2010)
The recognition and protection for human rights varies significantly across countries. Many countries purport to recognize human rights through their constitutions, statutes, or international treaties, but questions arise when the rights protected in practice vary, at least in some commentators’ views, from what the scope of the rights actually are, or should be. For those legal systems where human rights are not supported by conventional positive, one can ask: Can human rights norms be said to be part of the law even where there is no conventional social source? This topic is considered briefly, using the Nuremberg Trials as an example. In general, the connection between general moral standards and human rights complicates the already intricate problems relating to the relationship of conventional law and morality.
In connection with that basic question about the relationship of law and morality, the paper ultimately defends a view that is simultaneously simple, naïve, and radical (and goes back to H. L. A. Hart): that law is a sui generis form of normativity, a form of normativity of its own, that is not identical with or a subset of morality or any other normative system. Another way of putting the view would be to say that under this approach legal normativity in general, and legal propositions in particular, do not, by their nature, reduce to or equate to propositions of another type, nor do legal propositions, by their nature, purport to be propositions of another type. The paper defends this position against both the common contemporary view (by theorists like Joseph Raz) that law purports to make moral claims, and the recent position (taken by theorists like Mark Greenberg) that law simply is a subset of morality.
El propósito fundamental de este Diccionario de teoría jurídica es servir como un manual de traducción para favorecer la discusión y el efectivo intercambio de ideas entre los exponentes de diversas corrientes de la teoría del derecho. Al mismo tiempo, la obra se propone ofrecer una descripción del uso convencional de los términos e ideas básicas de diversas tradiciones iusfilosóficas, de un modo que sea accesible tanto para estudiantes de licenciatura que se inician en el estudio de la teoría del derecho, como para los profesores o investigadores que desean profundizar su conocimiento en la materia.
https://ru.juridicas.unam.mx:80/xmlui/handle/123456789/11543
The paper focuses on four topics (some suggested by Professor Massimo La Torre) connected with the American Legal Realism:
(1) Brian Leiter’s arguments about legal realism and contemporary jurisprudence: (a) that the American Legal Realists were best understood as philosophical naturalists; and (b) that analytical legal philosophy should similarly move to being entirely naturalistic. I also discuss, briefly, Dan Priel’s alternative naturalist approach.
(2) The argument associated with Frederick Schauer, but also with other theorists (e.g., Kenneth Einar Himma), that emphasizes coercion as the most important aspect of law (Schauer) or conceptually necessary for law (Himma).
(3) A contemporary variation of legal realism, which its advocates label “New Legal Realism.”
(4) Finally, I say a few words about the notion, common among American academics, that “we are all legal realists now.”
Postema’s work, supplemented by the works of other scholars along similar lines, directs us towards important interlocking insights regarding the nature of law and the nature of legal truth. The emphasis on the shared, social, and institutional nature of law both raises and helps us to begin to respond to issues about how to understand what makes propositions about law true or false. In the article, Part I introduces Dworkin’s ‘Protestant approach’ and the critique it evoked from Postema (supplemented by points raised by Robert Cover and Sanford Levinson). Part II looks at Postema’s discussions about the conventional groundings of law, and explores how this offers both answer and further questions regarding the nature of legal truth.
(2nd ed., Dennis Patterson, ed., Oxford: Wiley-Blackwell, 2010)
The recognition and protection for human rights varies significantly across countries. Many countries purport to recognize human rights through their constitutions, statutes, or international treaties, but questions arise when the rights protected in practice vary, at least in some commentators’ views, from what the scope of the rights actually are, or should be. For those legal systems where human rights are not supported by conventional positive, one can ask: Can human rights norms be said to be part of the law even where there is no conventional social source? This topic is considered briefly, using the Nuremberg Trials as an example. In general, the connection between general moral standards and human rights complicates the already intricate problems relating to the relationship of conventional law and morality.
In connection with that basic question about the relationship of law and morality, the paper ultimately defends a view that is simultaneously simple, naïve, and radical (and goes back to H. L. A. Hart): that law is a sui generis form of normativity, a form of normativity of its own, that is not identical with or a subset of morality or any other normative system. Another way of putting the view would be to say that under this approach legal normativity in general, and legal propositions in particular, do not, by their nature, reduce to or equate to propositions of another type, nor do legal propositions, by their nature, purport to be propositions of another type. The paper defends this position against both the common contemporary view (by theorists like Joseph Raz) that law purports to make moral claims, and the recent position (taken by theorists like Mark Greenberg) that law simply is a subset of morality.
First, many have questioned the connection between contract and promises, arguing that contracts and contract law are best understood in some other way (e.g., as being about consent/autonomy or about efficiency/utility). Second, many are inclined to think that our duty to keep our agreements varies with how far the decision to enter the agreement deviated from optimal consent, or with facts about the fairness of the background relationship and society generally.
It seems likely (and not terribly surprising) that one’s obligation to keep a contract will vary with its circumstances. Injustice in society, in the underlying relationship, in the negotiation of the agreement, or in the agreement’s terms would work against any such moral obligation. If this is right, then the starting point of discussions about the moral obligation to keep contracts varies from the starting point of discussions about the moral obligation to obey the law. On the latter topic, for a long time it was assumed that, at least for generally just legal systems, a moral obligation applied equally to all laws, though one might then argue about the defeasibility of that obligation in particular cases. With contracts, people seem less inclined to assume that all contracts bind equally (or, as they say regarding legal rules and commands, in a “content-independent way” ).
There remain questions of what the content of the obligation to keep one’s contract would be, assuming that there is one. Most of us would assume that it is an obligation actually to perform (unless there are good reasons not to), but some would argue merely for an obligation to perform or pay damages. Though the prompt payment of damages -- without disputing the breach, claiming a lower amount of damages, or threatening protracted and expensive litigation – would already be a significant advance on current common commercial practices.
In The Dignity of Commerce, Nathan Oman offers a theory of contract law that is largely descriptive, but also strongly normative. His theory presents contract law’s purpose as supporting robust markets. This article compares and contrasts Oman’s argument about the proper understanding of contract law with one presented over eighty years earlier by Morris Cohen. Oman’s focus is on the connection between Contract Law and markets; Cohen’s connection had been between Contract Law and the public interest. Oman’s work brings back Cohen’s basic insight, and gives it a more concrete form, as a formidable normative theory with detailed prescriptions.