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In everyday language the term ‘competence’ can mean proficiency or authority. A person can be a competent decision maker in the sense that as a rule he makes good and right decisions, but he can also be competent in the sense that he has the authority to make certain kinds of decision. My concern here is with competence in the sense of authority. The concept of legal competence, thus conceived, is a normative concept, in the sense that a person has competence by virtue of a norm, and that the exercise of competence changes a person’s normative position.

In this article, I argue (i) that we need a concept of legal competence to be able to discuss questions of legal validity and invalidity in a clear and fruitful way. I also defend an explication of the competence concept, according to which (ii) a person, p, has the competence in regard to a legal position, LP, if, and only if, there is an action, a, and a situation, S, such that if p in S performs a, and thus goes about it in the right way, p will, through a, change LP; and (iii) p exercises his competence by performing a special type of act, which is such that it depends for its legal effect on having been performed with the (actual or imputed) intent to bring about the said effect. In addition, I argue (iv) that we should distinguish (a) between autonomous and heteronomous competence, and (b) between norm-creating and regulative competence.

Karl Olivecrona maintains that courts necessarily create law when deciding a case. The reason, he explains, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. I am not convinced by Olivecrona’s analysis, however. The problem is that Olivecrona uses the term ‘evaluation’ in a broad enough sense to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and that therefore his claim that judges must evaluate issues of law or fact in order to decide a case is false.

I begin with a consideration of the structure of Olivecrona’s argumentation in support of the claim that courts necessarily create law when deciding a case (Section 2), adding a few words about the distinction between law application and judicial law-making (Section 3). I then consider Olivecrona’s tacit assumption that the occurrence of non-objective judicial evaluations must lead to judicial law-making (Section 4), the central claim that courts must evaluate issues of fact or law in order to decide a case (Section 5), and Olivecrona’s meta-ethics (Section 6). Having done that, I consider and reject an alternative interpretation of Olivecrona’s confusing ideas about evaluations (Section 7). I state my conclusions in Section 8.

The received view among legal theorists has been that Gustav Radbruch’s post-war standpoint was that law and morality are conceptually connected, and that therefore laws that are intolerably unjust are flawed law and must yield to justice; whereas Radbruch’s pre-war stance had been that of a legal positivist and a moral relativist. But recently Stanley Paulson has challenged the received view, arguing that Radbruch really wasn’t a legal positivist before the war, and that Radbruch’s pre-war analysis is actually compatible, indeed continuous, with the post-war analysis.

In this article, I argue that Radbruch’s pre- and post-war analyses are indeed incompatible, because they involve incompatible claims about the existence of a conceptual connection between law and morality. I also argue that the pre-war analysis is to be preferred to the post-war analysis. For whereas the pre-war analysis presupposes meta-ethical relativism, the post-war analysis presupposes moral objectivism, and meta-ethical relativism, but not moral objectivism, is a defensible meta-ethical theory.

In this article, I argue (i) that the realism espoused by the American realists and the Scandinavian realists alike is to be understood as a commitment to naturalism, conceived of as the ontological claim that everything is composed of natural entities whose properties determine all the properties of whatever it is that exists, or as the methodological (or epistemological) claim that the methods of justification and explanation in philosophy must, as they say, be continuous with those in the sciences, or as the semantic claim that scientifically acceptable concepts must be analyzable in terms of natural entities.[1] I also argue (ii) that the Scandinavians and the Americans were more alike, philosophically and legally speaking, than one might have thought. For, as we shall see, even though the Scandinavians were primarily semantic and ontological naturalists, and the Americans were mainly methodological naturalists, two of the Scandinavians (Lundstedt and Ross) also embraced methodological naturalism and some of the Americans (Holmes, Cook, and Cohen) also accepted semantic (and, it seems, ontological) naturalism; and even though the Scandinavians were primarily interested in the analysis of fundamental legal concepts, and the Americans were mainly interested in the study of adjudication, some of the Americans were also interested in the analysis of fundamental legal concepts. Furthermore, I suggest (iii) that the commitments to different types of naturalism on the part of these thinkers – both individually and collectively – may explain their respective choice of primary study-object, viz. fundamental legal concepts and adjudication, respectively. Finally, I argue (iv) that the modest version of conceptual analysis practiced by the Scandinavians and some of the Americans does not contradict their naturalism.

This book by the late Neil MacCormick is the fourth and last in a series ‘Law, State, and Practical Reason,’ which began with Questioning Sovereignty: Law, State and Nation in the European Commonwealth [Oxford: Oxford University Press, 1999], and continued with Rhetoric and the Rule of Law: A Theory of Legal Reasoning [Oxford: Oxford University Press, 2005] and Institutions of Law: An Essay in Legal Theory [Oxford: Oxford University Press, 2007]. The central question dealt with in the book is “Can reason be practical?”, and MacCormick’s answer to this question is “loudly affirmative” (209). In thus defending the existence of practical reason, MacCormick goes against two of the greatest figures in twentieth century legal philosophy, viz. the legal positivists Hans Kelsen and Alf Ross, and possibly also against a third great figure, viz. the legal positivist H. L. A. Hart.

In this short review, I offer a quick overview of MacCormick’s main line of argument, and consider in a little more detail what I take to be MacCormick’s central claim, viz. that the solution to the “riddle of practical reason” is to be found in (what MacCormick calls) the Smithian categorical imperative, that is, Kant’s categorical imperative supplemented with Adam Smith’s idea of an impartial spectator. I argue, very briefly, that MacCormick’s central claim is not as clear as it might be, and that in any case it is not really plausible.

Brian Leiter’s new book Naturalizing Jurisprudence, a collection of essays published over the past ten years, aims to introduce the idea of naturalism in jurisprudence. The first part of the book concerns the question whether the American Legal Realists (“the Realists,” for short) are best understood as jurisprudential naturalists. The second part is concerned with the more general question of whether, and if so, how, jurisprudence should be naturalized. And the third part treats questions concerning naturalism, morality, and objectivity. Leiter’s central aims, in keeping with this tripartite division of the book, are (i) to offer a reconstructive interpretation of the Realists as prescient naturalists, (ii) to make the case for a naturalized jurisprudence more generally, and (iii) to locate legal and moral norms in a world understood naturalistically.

Leiter’s book is a well-written and substantial contribution to the field of jurisprudence, and I warmly recommend it to anyone with an interest in contemporary jurisprudence, or in the implications of a naturalist approach to philosophy. Leiter’s ability to chart the implications of a naturalist research program in jurisprudence, and to pinpoint the weak spots in the writings of other philosophers in the process, together with the clarity of his reasoning, is impressive. But in spite of my appreciation of Leiter’s book, I argue in this review (i) that Leiter is too generous in his reconstructive interpretation of the Realists, and point out that, from the standpoint of a naturalized jurisprudence, Scandinavian Legal Realists such as Alf Ross, and Karl Olivecrona are actually more interesting than the (American) Realists. In doing that, I focus on Leiter’s account of different types of naturalism and their relation to one another, and the precise sense in which the Realists are said by Leiter to have naturalized jurisprudence. I also argue (ii) that Leiter’s case for a naturalized jurisprudence cannot be accepted as it stands, because it includes exaggerated and quite implausible claims about conceptual analysis, viz. that it is a doomed enterprise because it is always vulnerable to the demands of empirical theories, and that instead of analyzing legal concepts jurisprudents should adopt the legal concepts that figure in successful empirical theories of law and legal institutions in (roughly) the shape they have there. I have very few objections to Leiter’s analysis in the third part of the book, which I find interesting, illuminating, and quite persuasive.

The purpose of the Rechtsstaat is to protect individuals against the coercive power of the state, and this presupposes, inter alia, that court decisions are predictable – if court decisions weren’t predictable, then individuals would not be able to plan their lives so as to avoid the coercive power of the state. But there is a problem here. Court decisions often depend on statutory interpretation, statutory interpretation often depends on moral considerations, and moral considerations, I shall argue, can be true or valid only in light of a moral framework that itself is no truer or more valid than any other moral framework. Since on this analysis, there is no such thing as a moral judgment that is true or valid simpliciter, there can be no such thing as an interpretation of a statute that is true or valid simpliciter; and since it may be quite difficult to predict which (relative) moral framework the court will adopt in the interpretive process, we may in many cases be unable to predict court decisions. And if this is so, the purpose of the Rechtsstaat may be thwarted. In this article, I intend to consider this relativistic challenge to the ideal of the Rechtsstaat. My position is that the challenge cannot be met.

Relativistic theories and arguments are fairly common in legal thinking. A case in point is Stanley Fish’s theory of interpretation, which applies to statutes and constitutions as well as to novels and poems. Fish holds, inter alia, (i) that an interpretation of a statute, a poem, or some other text can be true or valid only in light of the interpretive strategies that define an interpretive community, and (ii) that no set of interpretive strategies (and therefore no interpretation) is truer or more valid than any other. In this article, I discuss these claims critically and argue that the very idea of an interpretive community is more or less unintelligible, and that in any case Fish’s theory is self-refuting.

Genetic information is information about a person’s genes. That is to say, it is information about the biological material, not the biological material itself.[ Unfortunately, access to genetic information about a person on the part of other people or institutions may affect that person negatively. First, genetic information is relevant to a person’s health now and in the future, which means that a person with a genetic condition has reason to fear that he will meet with negative reactions from employers, insurance companies, the government, and others. Second, if, as seems to be the case, genetic information is also relevant to a person’s behavior, we have reason to fear that criminals with a genetic condition may be acquitted on the ground that they were thought not to be responsible for what they had done, and that individuals with a genetic make-up that would likely make them criminals will be rounded up and treated before they have committed any crime. Third, it is likely that the result of one person’s genetic test will be of interest to other people (his siblings, for example), and that therefore there will be disputes about who is entitled to know the results of the test.

The question I want to consider in this article is whether the idea of a right to genetic privacy can be a useful analytical tool in the analysis of moral or legal problems that concern genetic information. For example, is an employer or an insurance company or a researcher who gains access to genetic information about a person from a DNA data bank guilty of violating his right to privacy? Is an employer who requires that his employees undergo genetic testing guilty of violating their right to privacy? Does a law that interferes with a person’s decision-making regarding personal, genetic issues violate his right to privacy? Etc. Some authors seem to think so, arguing as they do that our access to genetic information about other people ought to be circumscribed with the help of specific genetic privacy laws. I am inclined to agree, and I am going to argue that the idea of a right to genetic privacy, conceived of as a special case of the idea of a general right to privacy, can indeed be a useful analytical tool in the analysis of such problems, provided that we understand that right as a claim-right that covers so-called informational and physical privacy and nothing more.