Constitutional Theory Series: Withdrawing Commitments to the Rule of Law

The Centre will be hosting an online talk by Professor Thomas Bustamante (Federal University of Minas Gerais, Brazil) on December 4th, focusing on the nature of authoritarian attacks on the rule of law, and on the type of legal theory that is capable of resisting these attacks (which Professor Bustamante refers to as "inferentialism"). To register for the talk, please click the registration button on this page.

Note that this will be the first in a series of talks that we'll be hosting over the coming year on contemporary issues in legal and constitutional theory. The next talk will be announced shortly, and will take place during the winter semester, 2025.

Lecture Abstract

Given the influence of legal positivism and logical empiricism, a large number of legal philosophers believe that the content of the law is determined only to the extent that it is communicated in an authoritative pronouncement. To understand the law, one must retrieve a mental state of the author of a legal pronouncement. Mark Greenberg has called this view the “Standard Picture of Jurisprudence” (SP). Brandom’s inferentialism is at odds with SP. It rejects SP's atomism and SP's psychological strategy for figuring out the meaning of legal concepts. Once inferentialism is transposed to the realm of jurisprudence, it is clearer to see the relation between commitments and entitlements in the social practice of legal reasoning. Although legal philosophers frequently neglect this relationship, authoritarian leaders who challenge the legal limits posed by the rule of law do not. Aware of the relationship between commitments and entitlements, as well as the functional role that this relationship plays in legal discourse, authoritarians aim to render legal concepts empty by undermining the inferential relationships between implicit and explicit norms in the legal realm. They attack the rationality of law instead of the legal enactments laid down in positive law. We need an inferentialist theory, rather than SP, if we are to resist them.