Kenneth M. Ehrenberg Assistant Professor of Philosophy Research Associate Professor of Law Ph.D., Columbia (2005) J.D., Yale (1997)

Areas of Specialization: General Jurisprudence. Epistemology of Evidence Law. Moral/Political/Social Philosophy. Journal Articles: The Anarchist Official: A Problem for Legal Positivism, Australian Journal of Legal Philosophy (forthcoming, 2011). The possibility of legal officials who do not accept the law as providing reasons for action is a lacuna missed by the legal positivism of H.L.A. Hart and Joseph Raz and must be filled. The solution is a de-emphasis on the centrality of legal officials for our understanding of law. Law is not (Best Considered) an Essentially Contested Concept, 7 International Journal of Law in Context 232 (2011). The concept of law does not fit within the criteria generally offered for essential contestation. Essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when useful to gain a greater understanding of uses of those concepts. Applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) but it might be more useful for the related concept of the rule of law. Defending the Possibility of a Neutral Functional Theory of Law, 29 Oxford Journal of Legal Studies 91 (2009). An understanding of law’s social functions is crucial to explaining law, but this position does not commit a theorist to embrace the value of those functions, or law’s chances of success. This implies that the sociological study of law can be jurisprudentially fruitful in providing information about the different functions law performs. Archimedian Metaethics Defended, 39 Metaphilosophy 508 (2008). Defending a neutral point of view from which to analyze morality against the arguments of Ronald Dworkin. Dworkin attacks external skepticism about morality as incoherent, saying that one cannot step outside these practices in order to assess them. I show that external skepticism is still a viable position and important for certain arguments to improve our moral judgments. The Ideal and Non-Ideal in Behavior Guidance: Reflections on Law and Buddhism in Conversation with the Dalai Lama, 55 Buffalo Law Review 675 (2007). Highlighting the distinct approaches to behavior guidance employed by law and aspirational religious institutions like Buddhism, focusing on the work of Lon Fuller. There is importance to both baseline or duty-centered rules such as found primarily in criminal law and deontic morality, as well as aspirational guidance principles that are found in religious law, virtue ethics, and sometimes seen in civil law. However, the specific assumptions and aims of these two modes of guidance must be harmonized to be effective. Procedural Justice and Information in Conflict Resolving Institutions, 67 Albany Law Review 167 (2003). Notions of procedural justice alone are sufficient to support evidentiary exclusions in a wide variety of legal and law-like institutions that focus on conflict resolution, including courts. Special attention is paid to the relevance and need for exclusion of parties’ own assessments of the value of their claims. The implication is that relevant evidence is still properly excluded by principles of procedural justice alone. Social Structure and Responsibility, 5 Loyola Poverty Law Journal 1 (1999). Economic success in competitive systems requires resource redistribution to those who fail. Once we recognize that success in competitive endeavors depends meaningfully on the failure of others, policy implications that involve strong redistributive mechanisms should be drawn. Particular attention is paid to the role of education in fostering a sense of self-esteem necessary to counter the effects of internalized competition. Chapters in Edited Volumes: ‘La pretesa di prevenire: una discussion della teoria di Raz sull’ontologia legale’ (co-authored with Gian Paolo Terravecchia), in A. Allegra (ed.), Confronti con la filosofia analitica, (Padua: University of Padua, 2010), 183-194. [‘The claim of pre-emption: a discussion of Raz’s theory of legal ontology, in A. Allegra (ed.), Comparisons in analytic philosophy.] Highlighting the difficulties in Joseph Raz’s notion that the law claims to pre-empt individuals’ reasons for action, arguing instead that subjects allow the law to pre-empt their reasons when acceding to its authority. This has implications for motivations required or defined by law, suggesting that law cannot properly require that subjects be motivated by legal duties. ‘Philosophy of law’, in JiYuan Yu & ZhiWei Zhang (eds.), Philosophy (Series on Western Research in the Humanities and Social Sciences, ShuMing Lu (series ed.); Beijing: China Renmin University Press, 2008), 296-322 (in Chinese, ZhaoYun Pan, trans.). An overview of Anglo-American jurisprudence for a major Chinese academic encyclopedia, canvassing both general jurisprudence and theoretical issues in criminal, tort, contract, property, constitutional, and evidence law, as well as concerns in judicial review and interpretation. Also includes extensive bibliography. ‘House v Tritter: on the clash of theoretical and practical authority’, in Henry Jacoby (ed.), House and philosophy (Blackwell Philosophy and Pop Culture Series, William Irwin (series ed.); Hoboken: John Wiley & Sons, 2008), 174-186. Using the plot of a popular television series to highlight the tension between the authority of expert witnesses and that of legal officials as exemplified by a case where a talented doctor knows he can better help his patients by taking narcotics to treat his own chronic pain.  This has implications for how finders of fact navigate legal instructions on weighing and assessing expert testimony.  Currently available in eight languages. Works in Progress: 'Joseph Raz's Service Conception of Authority' An overview of Raz's theory of authority. Invited by Philosophy Compass. 'Critical Reception of Raz's Theory of Authority' A survey of criticism of Raz's theory of authority with actual and likely replies by Raz. Invited by Philosophy Compass. ‘Functions in Jurisprudential Methodology’ A state-of-the-discipline discussion of the arguments surrounding the use of functional thinking in trying to understand law and legal systems. Invited by Philosophy Compass. ‘More Information, Less Knowledge: Epistemic Contextualism and Evidentiary Exclusion’ The theory of epistemic contextualism, which holds that the meanings of knowledge attributions change according the stakes inherent in the contexts in which the attributions are made, is used to justify the exclusion of otherwise relevant evidence as seen in many legal systems, replying to criticisms stemming from work by Bentham. ‘Bad Evidence vs Weak Evidence: A Reply to Schauer on Bad Science as Good Evidence’ While the law might have good reason for the inclusion of what would be considered weak evidence by scientific standards, this cannot be applied to another category of evidence that would be considered objectively bad in failing to offer any support for the claimed fact. This implies the need for the application of scientific standards of relevance in legal contexts, even while scientific standards may not be appropriate for excluding weak evidence. 'Law’s Authority is not a Claim to Preemption' Against Joseph Raz’s claim that legal authority includes a claim by the law to replace subjects’ contrary reasons: Raz’s reasoning neglects a failure of closure; novel choice-of-evils defenses to criminal accusations show that the law invites us to act on our own reasons even when in conflict with the law; and anyone committed to the thesis that there are gaps in the law (as Raz is) must also allow that our own reasoning cannot be excluded. If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it does not make sense for it to claim on the one hand to preempt our contrary reasons and at the same time leave open spaces or catch-all exceptions which we must use our own devices to fill. ‘Law is a Perspectival Authority Concept’ Showing that different perspectives on the nature of law can conflict with one another while not representing competing theories, and that this is explained by the hierarchical authority structure inherent in legal systems. This implies that competing legal philosophies can be partially harmonized by seeing them as each privileging the perspective of one legal actor over others. Podcasts: http://ehrenbergphilosophylaw.classcaster.org/ Syllabi (internal links will not function): Law and Morality (Fall 2005) Law and Responsibility (Fall 2005) Law, Morality and Authority (Spring 2006) Topics in Legal Philosophy (Spring 2006) Philosophy of Law (Fall 2006) Topics in Legal Philosophy (Law/Grad Seminar - Fall 2006) Student Reviews: NYU Student Council Course Evaluation Guide UBCATS (requires UB login) A selection is available here.