As with many issues in contemporary jurisprudence, a host of recent debates concerning the proper methodology for legal theorists to adopt have been set into motion by H.L.A. Hart's The Concept of Law.H.L.A. HART, THE CONCEPT OF LAW (1st ed., 1961; 2nd ed. with Postscript, Penelope A. Bulloch and Joseph Raz, eds., 1994). All page references to this work are given according to the pagination in the 2nd edition. In the opening pages of the original edition of the book, Hart presents legal scholars in a self-reflective light, claming that they have a distinctive tendency to be drawn into theoretical debates concerning the subject matter of their discipline: “No vast literature is dedicated to answering the questions ‘What is chemistry?’ or ‘What is medicine?,’ as it is to the question ‘What is law?’HART, supra note 1, at 1.

Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic.

The result model of precedent holds that a legal precedent controls a fortiori cases—those cases, that is, that are at least as strong for the winning side of the precedent as the precedent case itself. This paper defends the result model against some objections by Larry Alexander, drawing on ideas from the field of Artificial Intelligence and Law in order to define an appropriate strength ordering for cases.

In an article published in 2001, Charles W. Collier raises a number of objections to my article “Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence,” beginning with an implicit objection embedded in the subtitle of his article: “Hate Speech and the Mind-Body Problem: A Critique of Postmodern Censorship Theory.” Since I advocate neither postmodernism nor censorship, and since I would have thought that “postmodern censorship” was an oxymoron, I found this characterization of my position surprising, to say the least. Collier does not define “postmodern censorship theory” or even “postmodernism,” but he helpfully includes a note citing Steven Gey's article, “The Case against Postmodern Censorship Theory.” Gey, in turn, claims to have picked up the terminology from an article by Kathleen Sullivan, “Free Speech Wars.” Curiously, though, Sullivan nowhere uses the phrase “postmodern censorship theory” in the article cited, although she does discuss a group of leftist legal theorists she dubs “the new speech regulators,” arguing that they: demand a response from those who would leave speech mostly deregulated; and they deserve a response that goes beyond the rote and reflexive invocation of free speech as an article of faith. The appeal to the First Amendment as self-evident truth may be no more effective, as Professor Henry Louis Gates Jr. recently cautioned, than Samuel Johnson's attempt to refute Bishop Berkeley merely by kicking a stone.

Nearly all philosophers of law agree that nonnormative, nonevaluative, contingent facts—descriptive facts, for short—are among the determinants of the content of the law. In particular, ordinary empirical facts about the behavior and mental states of people such as legislators, judges, other government officials, and voters play a part in determining that content. It is highly controversial, however, whether the relevant descriptive facts, which we can call law-determining practices, or law practices (or simply practices) for short, are the only determinants of legal content, or whether legal content also depends on normative or evaluative facts—value facts, for short. In fact, a central—perhaps the central—debate in the philosophy of law is a debate over whether value facts are among the determinants of the content of the law (though the debate is not usually characterized in this way).

Sometimes there are reasons for us to think or act in certain ways. We pay our taxes, we show up on time for our classes, we refuse to assent to claims that we recognize to be inconsistent, and we refrain from wanton violence, and we do each of these things because—we assume—there are reasons for us to do them. I will express the general point by saying that there are norms that apply to us, and to our thought and action. For a norm to apply to a person is for there to be a reason for that person to think or act in a particular way—the way indicated by the norm. Perhaps this reason is one that the person herself does not in any way recognize or acknowledge. But the reason itself—whether or not it is recognized or acknowledged by the person for whom it purports to be a reason—is what I call a “norm.” For instance, I might not recognize or acknowledge various norms concerning theft. But those norms still exist, and they still apply to me; there is a reason for me not to steal, whether or not I recognize or acknowledge that reason. My failure to recognize or acknowledge such reasons does not make them any less real or any less applicable to me.

There are many categories of action to which specific acts belong only if performed with some particular intention. Our commonsense concepts of types of action are sensitive to intent—think of the difference between lying and telling an untruth, for instance—but the law is replete with clear and unambiguous examples. Assault with intent to kill and possession of an illegal drug with intent to distribute are both much more serious crimes than mere assault and mere possession. A person is guilty of a crime of attempt—attempted murder, for instance, or attempted rape—only if that person had the intention to perform a crime. Under the federal carjacking law, an act of hijacking an automobile counts as carjacking only if performed with the intention to kill or inflict serious bodily harm on the driver of the car. In all of these cases, the question of whether or not a particular defendant had the precise intention necessary for the crime can make a huge difference, often a difference of years in prison, but sometimes literally a difference of life or death; sometimes whether the crime is one for which the death penalty can be given turns solely on the question of whether or not the actor had the relevant intention.