Homepage Jaap Hage

Introduction

Best publications

The full list with publications has its main use in allowing readers to locate a particular publication and to download it. Readers who are interested in my 'best' work - to be interpreted as: the work that I presently like the best - are perhaps better served with a shorter list of my 'best' publications.

I recently drafted the list below. It contains one book (at the top of the list) and fourteen articles. I added the years of publication to facilitate looking up the papers in the larger overview. While drafting the list, I noticed that the list contains relatively little work on logic in the usual technical sense, and relatively much on legal transactions and competences. To my own surprise, the list includes a paper on what is almost positive law: the sources of obligations. Here is the list:

1. Foundations and Building Blocks of Law (2018). This book is a summary of most of my research in the third milennium. It is best circumscribed as a condensed study in legal theory. I am still very proud of it and think it is one of the better books in that field.

2. Two Metaphors for Reasoning (1994). This paper marks the transition from my research in formal logic to research in the philosophy of logic. At the time I was not yet aware that it would fulfill that role and I continued to work on the book Reasoning with Rules.

3. Dialectical Models in AI and Law (2000). This papers contrast two approaches to dialogues in (legal) reasoning. The one approach uses conflicting arguments to model defeasible reasoning. It remains in the tradition of classical logic to the extent that it assigns a central role to arguments as timeless entitities. The other approach focuses of the social practice of argumentation, where argumentation consists in steps that are really taken in time by, typically, human beings.

4. De wondere wereld van het recht (2007). My inaugural address at the law faculty in Maastricht. I attempted to explain my view of legal transactions to a public of lawyers. The emphasis is on the idea that legal transactions are speech acts. The research in this tradition was later continued by Hester van der Kaaij, who wrote her PhD-thesis on the subject.

5. Legal transactions and the legal ought (2011). Somewhat to my embarrasment, I must admit that this paper was published in three slightly differing versions. This is the first version, published in the proceedings of a seminar in Cracow. (Several people in Cracow have played an important role in stimulating my research.) The point of the paper is that the derivation of 'ought' from 'is' that John Searle described is correct if promising is recognised as an event which creates a new ought. This insight has important implications for the distinction between static and dynamic rules, which is in turn crucial for understanding the operation of legal rules.

6. Three kinds of coherentism (2013). Michal Araszkiewicz visited me in Maastricht and we spent many hours, divided over several days, discussing the role of coherentism in law. When Michal, together wit Jaromir Savelka, edited a book on law and coherence, he asked me to contribute a chapter. This inspired me to write a comprehensive overview of the role of coherence in epistemology, including legal epistemology. In a later paper (Anything goes; 2016) I added a little to make the theory more relevant for practical purposes, but this is the exposition of what is essential in my view of coherence in law.

7. Recht als rede: een les uit de geschiedenis van het privaatrecht (2014). My contribution to the Liber Amicorum for my colleague Gerrit van Maanen. It discusses the development of the theory of the sources of obligations in Dutch law and uses that opportunity to present my view of the role of reason in law. It is, in my eyes, a demonstration of the usefulness of legal theory for doctrinal legal studies.

8. The justification of value judgments (2015). In this paper I abused the opportunity to write about the proper level to regulate European private law. The judgment what the proper level for regulation is, is a value judgement, and the paper I wrote was a methodological one. It addresses the question how such value judgments can be justified. The paper contains a rather comprehensive overview of methods for justification. The application of the theory to European private law is of relatively little importance, but the abstract theory is, in my eyes, good and one of the few systematic expositions on the subject.

9. Recht en Utilisme. Een pleidooi voor het utilisme als richtlijn voor de wetgever (2016). I have been a fan of hedonistic utilitarianism for most of my academic career. In this paper I gave an argument why legislators should be utilitarians. Most of the paper consists of refutations of arguments against hedonistic utilitarianism.

10. Theoretical Foundations for the Responsibility of Autonomous Agents (2017). The main reason why I like this paper is that it is explicit about my view of the place of human beings in the world. Very much like artificially intelligent agents, human beings are physical systems that interact with the rest of the world. It is difficult, if not impossible, to point out why human beings differ fundamentally from the rest of nature. Holding the latter agents responsible and liable for events that are attributed to them as their actions should be done for the same reasons as we should do it for human agents, and the other way round.

11. Exceptions in International Law (2020). This paper, which I co-authored with Antonia Waltermann and Gustavo Arosemena, is an elaborated version of the contribution we made to a workshop about exceptions in international law in Cambridge. Together with four related papers, it constitutes my contribution to the logic of international law. This line of research is presently continued by Henrique Marcos.

12. Responsibility, Liability and Retribution (2021). This paper, which I co-authored with Antonia Waltermann, addresses the question of whether free will exists and what the answer to this question implies for legal responsibility, liability, and for retribution in penal law. Although the topic was, at first sight, already outworn in the literature, I have the feeling that we nevertheless made a good contribution to the theory.

13. Capabilities, Powers, and Competences (2023). When Gonzalo Villa-Rosas and Torben Spaak organised an IVR special workshop on legal competence in, if I am correct, 2020, this gave me an opportunity to do something useful with a paper which I prepared for a presentation in Freiburg, many years before. (Thanks for the invitation, Ralf Poscher!) The paper is my umpteenth contribution to the theory of legal transactions, but after a break on this topic of several years I thought I had something to add to my earlier work.

14. Constitutivism and social reality (2024) The alleged logical gap between IS and OUGHT has held my attention for a large part of my academic career. When Stefano Bertea asked my to contribute to a book on constitutivism in meta-ethics and law, I had no idea what this constitutivism was about. But Stefano took the time to explain it to me (thanks, Stefano!), and after the explanation I realised that I had been thinking about this constitutivism for years. The central message of the paper is that the world we live in is a product of human minds and has, as such, intrinsic meaning. This meaning includes guidance for behaviour and by making it explicit (reference to Brandom's book on purpose), we can 'derive' what we ought to do.

15. Deontic Logic for Lawyers. Concepts without Formalism (2025). This is an attempt to translate the theory of Foundations and Building Blocks of Law about deontic notions into a theory of reasoning about what an agent ought (not) to do. It refrains on purpose from formalisation, as I presently think that formalisation does not improve our insight in what goes on in deontic reasoning.