The traditional account of the criminal trial holds that its fundamental purpose is to search for the truth—that is, the truth of whether the accused factually committed the alleged crime. However, purely truth-seeking accounts, as well as more nuanced side-constraint and pluralist accounts, fail to adequately explain the relationship between the epistemic principles and those of political morality shaping the criminal trial. In response, this article proposes that we understand the criminal trial first and foremost in terms of its purpose as a public procedure concerned with the legitimate use of coercive state powers against a particular person. Specifically, the criminal trial is a procedure that calls upon the state to provide a public justification for exercising its criminal law powers to convict and punish the accused. This account preserves the importance of establishing factual guilt because doing so is an essential part of the state’s justificatory burden.

In the literature, the Rule of Law (ROL) is mainly explained, and its value justified, by reference to its support for a liberal conception of human agency. As such, the connection between the ROL and legitimacy is normally considered contingent if the conception of the ROL is thin. It can be rendered necessary, it seems, only by a substantive conception that incorporates other political ideals, notably democracy. Without recourse to such a move, this article defends a necessary ROL-legitimacy connection by exploring the ROL’s contribution to the task of pacification, which, I argue, is inherent in the claim of legitimacy. My interpretation re-orients the ROL’s foundational value from the liberal conception of human agency to politically inspired fear and summa mala. The paradigmatic shift is in line with the realism approach to political theory which derives and explains moral claims in political theories from considerations of basic political necessity.

In recent years, the controversy between legal positivists and their opponents has been reframed as a debate on whether ‘legal facts’—aka facts about the ‘content of the law’—are determined by social or moral facts. This new framing ought to be resisted, for two reasons. First, it is biased against legal positivism, by making it the default picture that the ‘content of the law’ is not a set of legal norms atomistically individuated—which is essential to positivism—but a set of ‘facts’ (“the fact that Jones legally ought to pay $35 to Smith”) which can then be grounded holistically in moral facts. Second, talk of ‘legal facts’ has been instrumental in the recent metaphysical turn in jurisprudence, especially in the growing literature on grounding and law. Jurisprudes—of all stripes—should resist it, as it impoverishes and obfuscates many important philosophical questions about law.

Some philosophers and legal theorists believe that certain fundamental normative phenomena cannot be adequately explained without appeal to second-order reasons—that is, reasons to act (or not to act) for certain reasons. Others are resistant to such an appeal. This resistance takes a robust form in the Credit Argument, which holds that, since we cannot act for a reason for a reason, the very idea of second-order reasons must be incoherent. In this paper, I do several things. Firstly, I clarify in just what sense the Credit Argument supposes it is not ‘possible’ to act for a reason for a reason. Secondly, I propose a novel typology of second-order reasons. Thirdly, using these insights, I demonstrate that the Credit Argument is weak at several points and should therefore be roundly rejected. This amounts to a partial defence of the appeal to second-order reasons in the explanation of fundamental normative phenomena.

It is often said that natural law and interpretive perspectives of adjudication are incompatible with the notion of judicial law-making—in contrast to positivist and legal realist perspectives, which are hostile to the declaratory theory. One must either accept the declaratory theory or accept that judges make law, but one cannot accept both views. This article draws upon the jurisprudence of H.L.A. Hart, Karl Llewellyn, Lon Fuller, and Ronald Dworkin to push against the idea that these conceptions of the common law judicial method are fundamentally discordant. It is argued that, properly understood, the declaratory theory can be reconciled with the notion of judicial law-making.

Countermajoritarianism is the view that judicial review is antidemocratic because it allows an unelected and unaccountable minority (judges) to overrule laws that represent the will of the majority. The core claim of this view stresses the conflict between agents with a democratic and a non-democratic pedigree. I call this conflict the ‘pedigree problem’ of judicial review. Against countermajoritarianism, I argue that the pedigree problem does not affect some forms of judicial review: specifically, the judicial review that declares a norm inapplicable in a specific case due to the unconstitutional effects that this application brings about. Countermajoritarianism fails when objecting to the inapplicability model because the agents involved in judicial review—the constitutional court and the judge—have the same pedigree, i.e., non-democratic. In order to justify this claim, I draw insights from legal interpretation literature, specifically, the distinction between ‘norm formulation’ and ‘norm’.

Can Hartian positivism adequately explain disagreements, among U.S. officials, about the correct method of statutory interpretation? Ronald Dworkin influentially argued it cannot. Dworkin maintained that (1) debates about the correct method of statutory interpretation are ‘theoretical’ disagreements; and (2) Hartian positivism cannot explain theoretical disagreements, except by positing implausible confusion or disingenuity on the part of legal officials. I show here that (1) is false. A disagreement about the correct method of statutory interpretation need not involve a theoretical disagreement of any kind. It may instead involve a purely ‘denotational’ disagreement among officials—i.e., a disagreement about the denotation of a concept appearing in a criterion of legal validity that all officials accept. I argue that, since the U.S. statutory interpretation debate plausibly is a purely denotational one, it does not pose the difficulties for Hartian positivism that Dworkin and other critics have supposed.