We’ve got a brand new article, The Official Story of the Regulation, forthcoming in one of many high peer-reviewed authorized philosophy journals, the Oxford Journal of Authorized Research. Right here is the summary:
A authorized system’s ‘official story’ is its shared account of the regulation’s construction and sources, which members of its authorized neighborhood publicly advance and defend. In some societies, nevertheless, officers pay lip service to this shared account, whereas privately adhering to their very own unofficial story as a substitute. If the officers implement some novel authorized code whereas claiming constancy to older doctrines, then which algorithm—if both—is the regulation? We defend the authorized relevance of the official story, on largely Hartian grounds. Hart noticed authorized guidelines as decided by social guidelines accepted by a specific neighborhood. We argue that this acceptance requires no real normative dedication; settlement or compliance with the principles may even be feigned. And this neighborhood needn’t be restricted to an official class, however contains all who collectively settle for the principles. Having rejected these synthetic limits, one can take the official story at its phrase.
We hope that that is each a contribution in analytic jurisprudence and in constitutional regulation.
As a matter of analytic jurisprudence, the piece makes two arguments furthering the fundamental insights of H.L.A. Hart—exploring what it’s to “settle for” authorized guidelines, and the sort of neighborhood who should do the accepting. (On this vein, amongst different issues, the piece responds to and builds on earlier work within the OJLS by Mikolaj Barczentowicz and Adam Perry.)
As a matter of constitutional regulation, our argument responds to a recurring query about how to consider “our regulation” of constitutional interpretation. Suppose one thinks that judges systematically invoke one set of concerns of their official authorized reasoning, whereas being motivated behind the scenes by one thing else. (As an example, one may suppose that courts publicly motive in phrases in step with authentic regulation originalism, whereas truly making an attempt to advertise some set of non-legal coverage objectives.) The Official Story explains why the principles of our authorized system are evidenced by the previous quite than the latter.