Doctrinal legal scholarship faces persistent challenges from empirical approaches, but such criticism rarely seeks to encounter doctrine on its own terms. In this article, we seek to excavate the theoretical and methodological basis of doctrinal legal scholarship by situating the discipline in a hermeneutic continuum between theory and practice, or law’s engagement with the social world. We first unfold this dynamic as an exercise in methodological interpretivism and ontological hermeneutics and then turn to explicate our analysis with examples drawn from tort law and international criminal law. We ultimately argue that law can never be strictly circumscribed as an empirical object because law cannot be disassociated from an agent’s reasons, which are continuously bound up in a hermeneutic circle, and which the scholar must enter into to achieve legal understanding. Unavoidably, therefore, doctrinal legal scholarship becomes part of the very object it is investigating.

This paper builds on the work of several exceptional scholars from the disciplines of philosophy, law, and history. My central aim is to introduce and explicate an idea closely related to (and derivative of) the concept of rights talk, a concept I call ‘constitutional emotivism’. By drawing upon scholars including Mary Ann Glendon, Jamal Greene, A.J. Ayer, and Alasdair MacIntyre, I aim to gather the conceptual threads that I trace through their work which together form the idea of constitutional emotivism. In a sentence, constitutional emotivism is the conflation of moral disagreements with constitutional rights grievances. When this conflation occurs, rights conflicts that never needed to occur in the first place reinforce rights talk and its uncompromising nature.

Individuals sometimes do things that they know will violate the terms of a statute. Most scholars deny that such actions are always morally wrong, but a coherent theoretical account of the relationships between 1) moral obligation, 2) legal obligation, and 3) criminal wrongdoing that can robustly classify hard cases has been elusive. This article starts with a Kantian account of the relationship between law and morality, and it proposes two closely related standards: one for legal obligation, and another for criminal wrongdoing. It then tests the plausibility and resilience of these standards by using them to generate illuminating new analyses of classic hypothetical cases involving alleged crimes committed under circumstances of necessity. These analyses offer reason to believe that the standards proposed in this article can anchor a Kantian theory of criminal responsibility that is simultaneously rigorous and humane.

According to philosophical orthodoxy, the parties to moral or legal disputes genuinely disagree only if their uses of key normative terms in the dispute express the same meaning. Recently, however, this orthodoxy has been challenged. According to an influential alternative view, genuine moral and legal disagreements should be understood as metalinguistic negotiations over which meaning a given term should have. In this paper, we argue that the shared meaning view is motivated by much deeper considerations than its recent critics recognize, and that much would be lost in opting for the explanation of normative disputes as metalinguistic negotiations.

The decisionistic strand in Jewish legal philosophy is often neglected by scholars focused on the more common rational explanations for Jewish law. This article brings attention to decisionism in Jewish legal thought by analyzing the legal philosophy of Shneur Zalman of Lyady, the founder of the Habad Hasidic movement. The author uses the legal and political thought of Carl Schmitt—arguably modernity’s most influential decisionist—to help elucidate Shneur Zalman’s decisionistic legal thought and thereby put into sharper focus an otherwise underappreciated current in Jewish legal philosophy.

Some scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviors of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this Article I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and that any reliance upon the existence of an international rule of recognition should be eschewed as a result.

International human rights specialists and libertarian philosophers have rarely pursued meaningful exchanges, but this paper probes some of their common ground. In recent years, leading international monitoring bodies have developed a principle described here as the ‘Libertarian Principle of Human Rights’ (LPHR). It runs as follows: Governments cannot legitimately recite public morals as a sufficient justification to limit individual human rights. That principle might seem obvious in many societies today, but throughout history, including the history of liberalism, any notion that certain individual interests must trump religious or customary beliefs has stood as the rare exception. The seemingly Western and secular suggestion of a libertarian principle inherent within human rights may seem at odds with the view that human rights ought to reflect diverse cultural traditions; however, LPHR underscores an anti-authoritarianism, which, it is argued, must form part of any serious conception of human rights. LPHR can be substantiated even for highly controversial rights, such as LGBTQ+ rights, suggesting that it applies a fortiori to more settled rights.

The question of legal ‘style’ is a central one in comparative law, as mainstream comparative law tends to downplay its importance. The kinds of comparative law scholarship that have attracted most attention in the last decades – the ‘harmonisation projects’ and the ‘legal origins’ literature (perhaps also the ‘legal formant’ literature) – indeed adopt a functionalistic approach to legal systems, whereby only the outcome of judicial decisions (and the factors causally feeding into them) matters – that is, their style does not. This narrow perspective has led to arguments in favour of harmonisation of law worldwide – the thesis according to which law everywhere does and should converge so as to facilitate transnational commerce and globalisation more generally. I propose to argue that legal style matters, as law is about much more than just resolving disputes. Specifically, it is also, and most importantly, a collective statement of identity. To illustrate, I plan on analysing some of the most striking stylistic differences between French and English law, and outline the different such statements emerging from them.

The UN system requires far-reaching changes so as to achieve the objectives of the UN Charter (e.g. with regard to human rights and maintenance of peace) more effectively. European integration law suggests that ‘international constitutionalism’ offers the most effective approach for strengthening the rule of law and peaceful cooperation among democracies. Section 2 outlines basic principles for a constitutional theory of international law. Section 3 discusses the difficulties of ‘constitutionalizing’ the state-centered and power-oriented concepts of the UN Charter. Section 4 explains why the successful Uruguay Round strategy for replacing the old GATT 1947 by the new World Trade Organization (WTO) – notably the ‘package deal negotiations’, the incorporation of other worldwide treaties into WTO law and the mandatory WTO dispute settlement and enforcement systems – offer important lessons for the needed reforms of the UN Charter.

The dichotomy of reason and passion is so deeply embedded in the construction of what is ‘legal‘ that it seems difficult even to imagine an international law that would not be entrenched in it. The very identity of international law seems based on its capacity to set itself on the side of reason, in opposition to the passionate, the irrational. Is not reason practically synonymous with order, and passion with chaos? And what is law for if not to bring about order, and to allow exit from our slavery under passion? Is not reason what is universal and objective, while passion is particular and subjective? And is it not then the case that a law pretending to universality must perforce align itself with the forces of reason?