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Triantafyllos Gkouvas: Law and the Communicative A Priori

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University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

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The Surrey Centre for Law and Philosophy is pleased to invite you to a Hart Seminar by Triantafyllos Gkouvas: Title TBA

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This is an optional pre-read seminar, and the paper will be circulated to registered attendees in advance. A reception will follow the seminar.

The publication of Mark Greenberg’s ‘How Facts Make Law’ (henceforth, HFML) marked the sprawling of what I would dare to describe as two new—in terms of their logical rigour and philosophical sophistication—areas of scholarship in analytical jurisprudence: one seeking to apply in a logically refined way the notion of metaphysical ground to legal facts and another inquiring into the relevance of appeals to communicative practices for the determination of legal content. This is not a sharp division as both areas are defined by a growing appreciation of the importance of formal explanations—metaphysical, epistemic and metasemantic—in law. In this paper I will confine my attention to contributions made in the “communicative” so to speak area of post-HFML scholarship with a view to singling out a metaphysical implication of the relevant debate that has oddly gone missing. It has gone missing—or so I shall argue—because its nature cannot be captured by recourse to the other familiar area regarding the metaphysical grounds of legal facts. More precisely, I shall argue that behind Greenberg’s progressively refined—from the first wave of fiery responses to HFML to his flagship paper ‘The Moral Impact Theory of Law’ (henceforth MITL)—advocacy of the relevance of value for the determination of legal content there lies an unarticulated transcendental, in the Kantian sense, argument about the necessary conditions of the possibility of normative communication. The idea I will try to flesh out and cautiously associate with many of Greenberg’s remarks about the limits of linguistic communication in law is that the the relevance of communicative-linguistic facts for how legal content is determined can only be settled by appeal to normative facts that transcend the symbolic level—that is, the level of ordinary language and its communicative use. It is precisely in this regard that I will venture to re-articulate Greenberg’s project as being about the possibility of the communicative a priori, or, in flashier terms, the possibility of language-independent knowledge in law. Consequently, I shall argue that in much the same way that Kant argued for the possibility of a self-disciplined transcendence of empirical cognition, Greenberg wants to keep open the avenue for a principled transcendence of linguistic communication in law. Describing this move in these terms will allow me to take the liberty of concluding this paper with an explanation of why Greenberg’s jurisprudential project is a novel case of transcendental pragmatism, that is, a variant of pragmatism that acknowledges the existence of boundaries in linguistic communication that are symbolically or communicatively a priori in the sense that they are self-imposed by us qua rational addressees of normatively relevant information.

Triantafyllos Gkouvas is Lecturer in Legal Theory at the U. of Glasgow School of Law.

This seminar is part of our Hart Seminar Series, which features a diverse group of leading scholars working at the intersection of law and philosophy. Hart Publishing contributes generous support to make the seminar series possible.

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Location

University of Surrey School of Law

Frank Whittle Building (AB)

Fifth Floor

Guildford

GU2 7XH

United Kingdom

View Map

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