Table Of ContentPHILOSOPHY OF LAW AS AN INTEGRAL
PART OF PHILOSOPHY
This edited collection considers the work of one of the most important legal
philosophers of our time, Professor Gerald J Postema. It includes contributions
from expert philosophers of law.
The chapters dig deep into important camps of Postema’s rich theoretical
project including:
– the value of the rule of law;
– the ideal of integrity in adjudication;
– his works on analogical reasoning;
– the methodology of jurisprudence;
– dialogues with Ronald Dworkin, Joseph Raz, Frederick Schauer and HLA
Hart.
The collection includes an original article by Professor Postema, in which he
develops his conception of the rule of law and replies to some objections to
previous works, and an interview in which he provides a fascinating and unique
insight into his philosophy of law.
Philosophy of Law as an
Integral Part of Philosophy
Essays on the Jurisprudence
of Gerald J Postema
Edited by
Thomas Bustamante
and
Thiago Lopes Decat
HART PUBLISHING
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Names: Bustamante, Thomas da Rosa de, 1976- editor. | Decat, Thiago Lopes, editor.
Title: Philosophy of law as an integral part of philosophy : essays on the jurisprudence
of Gerald J Postema / edited by Thomas Bustamante and Thiago Lopes Decat.
Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of
Bloomsbury Publishing, 2020. | Includes bibliographical references and index.
Identifi ers: LCCN 2020032469 (print) | LCCN 2020032470 (ebook) |
ISBN 9781509933884 (hardback) | ISBN 9781509933907 (ePDF) | ISBN 9781509933891 (Epub)
Subjects: LCSH: Law—Philosophy. | Rule of law. | Jurisprudence. | Postema, Gerald J.
Classifi cation: LCC K231 .P475 2020 (print) | LCC K231 (ebook) | DDC 340/.1—dc23
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Table of Contents
List of Contributors .....................................................................................vii
Introduction ��������������������������������������������������������������������������������������������������1
Thomas Bustamante and Thiago Lopes Decat
PART I
ON THE VALUE OF THE RULE OF LAW
1. Fidelity, Accountability and Trust: Tensions at the Heart
of the Rule of Law ��������������������������������������������������������������������������������33
Gerald J Postema
2. Equal Concern and Respect as the Foundation of Postema’s
Notion of the Rule of Law ��������������������������������������������������������������������61
Franklin M Dutra
PART II
LEGAL REASONING, INTEGRITY
AND PROTESTANT INTERPRETATION
3. Postema’s Account of Integrity ...............................................................77
Barbara Baum Levenbook
4. Revisiting the Idea of Protestant Interpretation: Towards
Reconciliation between Dworkin and Postema .....................................113
Thomas Bustamante
5. Postema, Dworkin, and the Question of Meaning ................................141
Dennis Patterson
6. Protestant Interpretation, Conventions, and Legal Truth.......................147
Brian H Bix
PART III
ANALOGICAL REASONING IN LAW
7. Some Inferentialist Remarks on Postema’s Conception
of Analogical Thinking in Law ............................................................159
Thiago Lopes Decat
vi Table of Contents
8. Postema on Analogies in Law ���������������������������������������������������������������181
Fábio Perin Shecaira
PART IV
METHODOLOGY AND THE NATURE
OF JURISPRUDENCE
9. Postema on Hart: The Illusion of Value-Neutrality �������������������������������193
Margaret Martin
10. Analytic Jurisprudence in Time ������������������������������������������������������������213
Dan Priel
11. How Postema’s Jurisprudence as Sociable Science is Like Dworkin’s
Interpretivism: On Conceptual Analysis in Legal Theory ����������������������243
Saulo de Matos
PART V
POSTEMA’S ANALYSIS OF
CONTEMPORARY LEGAL THEORIES
12. In Defence of a Thin Concept of Law ��������������������������������������������������261
Andrea Faggion
13. Philosophical and Psychological Distinctions between Presumptive
Positivism and Rule-Sensitive Particularism ������������������������������������������281
Guilherme da FCF de Almeida and Noel Struchiner
14. Interview with Professor Gerald Postema ����������������������������������������������301
Thomas Bustamante, César Serbena and Natalina Stamile
Index ���������������������������������������������������������������������������������������������������������319
List of Contributors
Guilherme de Almeida is the Lead Researcher at ‘ S upremo em Nú m eros’ (FGV
Direito Rio) and a PhD candidate in legal philosophy, PUC-Rio. MSSc in legal
philosophy, PUC-Rio (2017).
Brian Bix is the Frederick W Thomas Professor of Law and Philosophy at the
University of Minnesota. He holds a DPhil (doctorate) from Balliol College,
Oxford University, and a JD from Harvard University. His publications include
Jurisprudence: Theory and Context (8th edn, Sweet & Maxwell 2019);
A Dictionary of Legal Theory (Oxford University Press 2004); and L aw,
Language and Legal Determinacy (Oxford University Press 1993).
Thomas Bustamante is Professor of Legal Theory at the Federal University of
Minas Gerais, Brazil, and Research Productivity Fellow of the National Council
for Scientifi c and Technological Development (CNPq), Brazil. He holds a PhD
from the Pontifi cal Catholic University of Rio de Janeiro. Some of his works in
English appear in the Canadian Journal of Law and Jurisprudence , Modern
Law Review , Jurisprudence , Australian Journal of Legal Philosophy and
German Law Journal. He has edited the books D emocratizing Constitutional
Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism
(with Bernardo Fernandes, 2016), Argument Types and Fallacies in Legal
Argumentation (with Christian Dahlman, 2015) and O n the Philosophy of
Precedent (with Carlos Bernal Pulido, 2012).
Thiago Lopes Decat is Professor of Philosophy and Theory of Law at the
Federal University of Minas Gerais (UFMG), Brazil. He got his Master ’ s Degree
in Philosophy, at UFMG, in the fi eld of ‘ Logic, Science, Mind and Language ’ ,
and his PhD in Theory of Law at the Pontifi cal Catholic University of Minas
Gerais. He has had books and articles published in the areas of Legal Theory
and Philosophy, and researches subjects concerning rationality, agency, norma-
tivity and metaethics applied to law understood as a social practice.
Franklin M Dutra is Professor of Public Law at the Saint Augustine Faculty
(FASA), c ampus Sete Lagoas, Brazil, and temporary lecturer of Legal Theory
at the Federal University of Rio de Janeiro, Brazil. He has a Research MPhil
from the Federal University of Minas Gerais on A ffi rmative Actions and John
Rawls ’ s Theory of Justice , and currently is a PhD candidate in Law at the Federal
University of Minas Gerais (Brazil).
Andrea Faggion is Associate Professor in the Department of Philosophy at the
State University of Londrina, Parana, Brazil. She got her doctorate in philosophy
viii List of Contributors
from the State University of Campinas, Sao Paulo, Brazil. Nowadays, her
research interests are mainly in political philosophy and analytical jurispru-
dence. Her main topics of study are the problems of law ’ s normativity, political
authority and political obligation. In past years, she developed research in
Modern Philosophy, focusing especially on the works of Immanuel Kant. She
has published dozens of papers on Kant’ s philosophy.
Barbara Baum Levenbook is Professor in the Department of Philosophy and
Religious Studies at the North Carolina State University. She has been writing
and publishing on topics of legal philosophy for over 30 years. Her articles on
legal philosophy have appeared in Legal Theory , Law and Philosophy , The
Canadian Journal of Philosophy , Jurisprudence and law reviews. In other jour-
nals, she has published articles on social and political philosophy, on normative
ethics and on its intersection with metaphysics. In addition, she has contrib-
uted and continues to contribute to philosophical anthologies, including
Oxford Studies in Philosophy of Law (vol 2) and T he Cambridge Companion
to Legal Positivism . She is a contributing editor to J otwell: Jurisprudence and
is the author of an article in Philosophy of Law: An Encyclopedia, edited by
Christopher Gray. She holds a BA and an MA in philosophy from the University
of Rochester and a PhD in philosophy from the University of Arizona.
Margaret Martin is Associate Professor at the Western University, in Canada.
She holds a PhD from the University of Cambridge, a MSL from the University
of Toronto and got her BA (Hons) and MA from McMaster University. Her
thesis was the basis of her monograph Judging Positivism (Hart Publishing
2014), and her doctoral studies were supported by the Social Sciences and
Humanities Research Council of Canada, the Cambridge Commonwealth Trust
and the Overseas Research Scholarship. Her main research interests are legal
philosophy, constitutional law and international criminal law.
Saulo de Matos is Professor of Jurisprudence and Philosophy of Law at the
Faculty of Law of Federal University of Pará . He obtained his PhD at the
Department of Philosophy of Law and Social Philosophy of the University
of G ö ttingen (Germany) and his Master ’ s degree in Law at the University of
Heidelberg (Germany).
Dennis Patterson is Board of Governors Professor of Law and Philosophy at
Rutgers University and Professor of Legal Philosophy at Surrey Law School,
Guildford, UK.
Gerald J Postema is Professor of Philosophy, Emeritus, University of North
Carolina at Chapel Hill; Cary C Boshamer Professor of Philosophy and
Professor of Law, University of North Carolina at Chapel Hill (1980– 2 019).
Arthur L Goodhart Visiting Professor of Legal Science, Cambridge University
(2013– 14) and Fellow of Corpus Christi College, Cambridge; Guggenheim
Fellow (2005 – 06); Rockefeller Fellow, Bellagio (2001); Fellow of the Netherlands
List of Contributors ix
Institute for Advanced Studies (1996 – 97). He holds an honorary doctorate from
the University of Athens and has held visiting posts at the European University
Institute (Florence), University of Athens, Yale University and University of
California, Berkeley. He is author of Bentham and the Common Law Tradition
(1986, 2019); Legal Philosophy in the Twentieth Century: The Common Law
World (2011); and editor of M atthew Hale on the Law of Nature, Reason and
the Common Law (2018).
Dan Priel is a Professor at Osgoode Hall Law School, at York University, Canada.
F á bio Perin Shecaira is Professor of Legal Theory, Faculty of Law of the Federal
University of Rio de Janeiro (since 2012). He has a PhD in Philosophy, McMaster
University (2012) and has been a Visiting Researcher at Harvard Law School
(2011). He has published in English in journals like History of Philosophy
Quarterly , Australian Journal of Legal Philosophy , Law and Philosophy ,
Informal Logic , Ratio Juris and Argumentation .
C é sar Antonio Serbena is Full Professor of Legal Philosophy at the Law School
of the Federal University of Paran á (UFPR), in the city of Curitiba, Brazil. He has
experience in teaching Law, focusing on the Philosophy of Law, and researching
the following subjects: e-justice, legal language, deontic logic, epistemology and
analysis of legal reasoning. He is also the Coordinator of the Research Groups:
e-Justice UFPR and Foundations of Law .
Natalina Stamile , having been a post-doctoral researcher and Professor in
the Postgraduate Programme in Law at the Federal University of Paran á ,
Brazil (2016 – 19), is currently an Associate Lecturer of Philosophy and Legal
Informatics at the University of Bergamo, Italy. She completed her PhD in 2012
on the Legal Theory and European Legal Order programme at Magna Graecia
University, Italy. She has also been a visiting researcher in numerous universities,
and the author of essays and articles in different languages. Her main research
areas are Theory and Philosophy of Law, Fundamental Rights, Constitutional
Justice and Legal Informatics.
Noel Struchiner is Professor of Law and Philosophy at the Pontifi cal Catholic
University of Rio de Janeiro. He holds a ‘ P roductivity Fellow’ at CNPq (National
Council for Scientifi c and Technological Development) and is a ‘ Scientist of the
State of Rio de Janeiro Fellow ’ at FAPERJ (Carlos Chagas Filho Foundation
of Research Support of the State of Rio de Janeiro). He has been a Visiting
Researcher, Brown University (2012), a Visiting Researcher, Harvard University
(2004). PhD in Philosophy, PUC-Rio (2005).
