This chapter argues against rule-deductivism. Rule-deductivism is the view that the justification of law-applying decisions is adequately understood on the model of a deductive argument—a “legal syllogism”, as it is often called—with a statement of an applicable rule as the “major premise”, and a statement of the relevant facts as the “minor” one. Rule-deductivism—not to be confused with formalism—has long been a popular view in legal argumentation theory. Endorsed by Kelsen, Hart, MacCormick, and Alexy, it continues to be accepted by authors such as Gardner, Leiter, and Marmor, among many others. But it is wrong, as this chapter tries to show. This chapter begins by offering a clear characterization of rule-deductivism; goes on to argue that rule-deductivism is not, even in its stronger version, a view that should be accepted; and concludes by sketching and motivating a new model of the justification of law-applying decisions that overcomes the flaws of the model of the legal syllogism.

Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of 'detached' statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz's problem is thus not thereby solved. But the problem itself, I also suggest, is a false one.

Wesley Newcomb Hohfeld's account of legal rights is now 100 years old. It has been much discussed, and remains very inf luential with philosophers and lawyers alike. Yet it is still sometimes misunderstood in crucial respects. This article offers a rigorous exposition (with some revisions) of Hohfeld's framework; discusses its claims to comprehensiveness and fundamentality, reviewing recent work on the topic; and highlights the argumentative uses of Hohfeld's most important distinction.

My main purpose is to suggest that H. L. A. Hart's infamous "ascriptivism" 1 may be of considerable pertinence to the assessment of the nature of justificatory claims in the criminal law; in passing, I argue that ascriptivism gives no cause for infamy. My suggestion is developed in Part III: As it depends on some reformulation and endorsement of Hart's ideas, I discuss the "ascriptive" and "defeasible" character of the concept of action in Part II, and therein try to dismiss some of the severe criticism that ascriptivism has given rise to since its proposal. This criticism, I shall argue, often relies upon a poor or uncharitable interpretation of Hart's instrumental characterization of the "defeasibility" of legal concepts; for this reason, Part I is dedicated to a reconstructive elucidation of Hart's account of "conceptual defeasibility." 2

Courts and lawyers often argue a fortiori. Sometimes they actually use the Latin phrase to indicate that their conclusions do not just follow, but ‘follow a fortiori’ from certain premises. These are taken to be inferences of a distinct and important kind. But how exactly are they distinct, and why are they important? Despite their popularity, a fortiori arguments are not well understood and have not drawn much attention from legal theorists. This paper pursues two goals. The first is to bring out the form of a fortiori arguments, articulating those assumptions that, though typically left unstated, are necessary elements of arguments of this kind. The second goal is to say something about the point of such arguments, and to characterise the sort of context in which an arguer will have reason to deploy an a fortiori rather than an inference of a different type.