This chapter begins from the proposition that the conventional narrative suggests that there are unwritten constitutional rules and principles that exist adjacent to, or supplementary to, the official written constitution. But the spatial metaphor suggested by this framing of the issue is mistaken, the author says. He notes that we have learned from the enduring jurisprudential contributions of Hans Kelsen and H. L. A. Hart that the status as law of a constitution rests on a necessarily unwritten social practice establishing what counts as the constitution. This unwritten social practice might exclude some of what the official written document includes and might include some rules or principles that are not found in the official written document, but the basic point is that a written document’s status as “the constitution” rests itself on unwritten foundations, making the idea of an unwritten constitution central to the very idea of constitutionalism.

Wesley Newcomb Hohfeld is well-known for maintaining that various terms in law – “rights,” most prominently – confusingly designate a number of quite different legal relationships. But what is the source of the confusion? Is it that the terms themselves are vague or ambiguous, thus making them susceptible to multiple meanings? Or is it that the lawyers, judges, and commentators who use such terms are loose thinkers, needing careful analysis in order to clear their minds and their thoughts? Or is it something else?

As a number of modern sexual misconduct cases demonstrate, often there are multiple charges against a single individual under circumstances in which the proof of an individual charge may fall short of the required standard of proof, but in which it is clear – overwhelmingly, or beyond a reasonable doubt – that at least one of the charges is true, even if we cannot be sure which one. Building on earlier work by myself and Richard Zeckhauser, by Alon Harel and Ariel Porat, and by Ariel Porat and Eric Posner, among others, this paper, prepared for the World Congress on Evidential Reasoning at the University of Girona, offers a sympathetic examination of sanction imposition – inside and outside formal legal proceedings – on the basis of aggregate probabilities, and addresses a series of common objections. And the paper suggests that the greatest value of aggregating low (or lower) probability charges may be greatest outside the official judicial process. It also hints, albeit inconclusively, at the larger question of why the law focuses on acts when it is imposing sanctions rather than focusing on the actors who may have committed those acts.

Schauer discusses normative positivism, explaining that this type of positivism comes in two main versions, namely, in the shape of a prescription to legal actors and in the shape of a prescription to legal institutional designers. He argues that a full appreciation of the artefactual nature of law leads to the conclusion that a culture can modify its concept of law in order to make it as useful a concept as possible, and that if normative positivism is a plausible position, it follows not only that choosing a concept of law on moral grounds is a moral position but also that choosing to see the enterprise of legal theory in a normative way itself amounts to a normative position.

Is social science a large part, a small part or no part of the philosophy of law? The question is important, and its importance is highlighted, perhaps ironically, in a strong, unqualified and prominent assertion by Joseph Raz. ‘The sociology of law’, Raz says, ‘provides a wealth of detailed information and analysis of the functions of law in some particular societies. Legal philosophy has to be content with those few features which all legal systems necessarily possess.’1

Legal Realism is contested terrain. Whether we label the perspective legal realism, or Legal Realism, or American Legal Realism, there have been for at least eighty years serious disputes about just what Legal Realism is and what it claims. Moreover, the terrain is contested not merely because there are disagreements around the edges – that is, with respect to the borderline cases of what is or is not a Realist perspective. Rather, the very nature of Legal Realism is contested, as we can see from the existence of widely divergent views about just what the core claims and commitments of Legal Realism are.

A sample of the various positions claiming the Legal Realist banner will make the extent of this disagreement clearer. Thus, some theorists believe that Legal Realism is centrally about the relative importance of facts in adjudication, in contrast to a traditional view allegedly holding that abstract rules are more important determinants of legal outcomes than are the facts of particular cases.

Those who subscribe to this understanding of Legal Realism's core commitments do not, of course, saddle the traditional view with the implausible position that abstract legal rules can be applied to particular cases without regard to the facts presented in those cases. Nevertheless, an important difference remains in emphasis between a traditional view that the determination of which facts are relevant comes from preexisting legal rules, and a Legal Realist view holding that judicial and other legal decisions are made primarily on the basis of all the facts of a particular controversy that a particular judge deems relevant, without regard to whether some array of preexisting legal rules makes those facts relevant.

It is no longer news that there are countries in which it is unlawful to deny the existence of the Nazi Holocaust. Nor is it surprising that among these countries are Austria, Germany, and Israel, given the obvious historical reasons for their treatment of Holocaust denial with special sensitivity. But Holocaust denial is also a crime in Belgium, Canada, France, Spain, and Switzerland, among other countries, and a similar prohibition is now being proposed in Argentina. Moreover, existing or proposed laws also deal with denial of genocide in, for example, Armenia and Rwanda, and thus it is safe to say that the question of legal prohibitions on Holocaust denial is one of worldwide and not just regional or local interest.

Although the criminalization of Holocaust denial is thus hardly unique, it is also the case that in other countries, most obviously, but not only, the United States, the very idea of punishing the expression of an idea on account of the idea's falsity goes to the heart of principle of freedom of speech. It is not simply that Holocaust denial is legally permitted and constitutionally protected in the United States. It is that the legal and constitutional permissibility of Holocaust denial is understood as a core and not merely a fringe application of the very idea of freedom of speech under the First Amendment.