Brian Leiter
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199206490
- eISBN:
- 9780191715020
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206490.001.0001
- Subject:
- Law, Philosophy of Law
The author is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic ...
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The author is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic turn in philosophy to the problems of legal philosophy. This volume collects newly revised versions of ten of his best-known essays, which set out his reinterpretation of the Legal Realists as prescient philosophical naturalists; critically engage with jurisprudential responses to Legal Realism, from legal positivism to Critical Legal Studies; connect the Realist program to the methodology debate in contemporary jurisprudence; and explore the general implications of a naturalistic world view for problems about the objectivity of law and morality. He has supplied a lengthy new introductory essay, as well as postscripts to several of the essays, in which he responds to challenges to his interpretive and philosophical claims by academic lawyers and philosophers.Less
The author is widely recognized as the leading philosophical interpreter of the jurisprudence of American Legal Realism, as well as the most influential proponent of the relevance of the naturalistic turn in philosophy to the problems of legal philosophy. This volume collects newly revised versions of ten of his best-known essays, which set out his reinterpretation of the Legal Realists as prescient philosophical naturalists; critically engage with jurisprudential responses to Legal Realism, from legal positivism to Critical Legal Studies; connect the Realist program to the methodology debate in contemporary jurisprudence; and explore the general implications of a naturalistic world view for problems about the objectivity of law and morality. He has supplied a lengthy new introductory essay, as well as postscripts to several of the essays, in which he responds to challenges to his interpretive and philosophical claims by academic lawyers and philosophers.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0014
- Subject:
- Law, Philosophy of Law
This chapter presents a critical examination of Unger's seminal article and book The Critical Legal Studies Movement, and of its account of legal thought, tested against its account of certain ...
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This chapter presents a critical examination of Unger's seminal article and book The Critical Legal Studies Movement, and of its account of legal thought, tested against its account of certain ‘exemplary’ difficulties in the Anglo-American law of contract. Unger's account fundamentally misconstrues the ways of legal thought and hides its misunderstanding behind equivocations on ‘(in)determinate’ and ‘(un)justified’ and neglect of under-determination. Its triadic schemas are too complex and too simple to capture the problems with which any law of contract must grapple. Underlying the Movement is a poverty-stricken conception of the forms of human good and a scepticism resting on unsound arguments. The result is a threat to the vulnerable in society.Less
This chapter presents a critical examination of Unger's seminal article and book The Critical Legal Studies Movement, and of its account of legal thought, tested against its account of certain ‘exemplary’ difficulties in the Anglo-American law of contract. Unger's account fundamentally misconstrues the ways of legal thought and hides its misunderstanding behind equivocations on ‘(in)determinate’ and ‘(un)justified’ and neglect of under-determination. Its triadic schemas are too complex and too simple to capture the problems with which any law of contract must grapple. Underlying the Movement is a poverty-stricken conception of the forms of human good and a scepticism resting on unsound arguments. The result is a threat to the vulnerable in society.
Alexandre (Sandy) Kedar
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199260744
- eISBN:
- 9780191698675
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199260744.003.0020
- Subject:
- Law, Philosophy of Law
Since the ‘Courts of the Conquerors’ appears to have a complex view regarding how native land becomes subject to dispossession, this chapter attempts to look into observations and assumptions about ...
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Since the ‘Courts of the Conquerors’ appears to have a complex view regarding how native land becomes subject to dispossession, this chapter attempts to look into observations and assumptions about the responsibilities and actions taken by the Supreme Courts and the setting up and maintaining of the geographies of power associated to various settler societies. In attempting to heighten others' interest in exploring settler societies' land regimes that would aid in the development of the said research agenda of legal geography, the chapter introduces political geographer Oren Yiftachel's conception of ethnocratic settler societies. Aside from introducing the novel discipline referred to as Legal Geography that accounts for how Critical Legal Studies (CLS) may have favourable effects on Critical Local Geography (CLG), this chapter also presents how ethnocratic land regimes are created and sustained. Also, the chapter looks into the specific case of how the Israeli land regime was formulated through the Israeli legal system.Less
Since the ‘Courts of the Conquerors’ appears to have a complex view regarding how native land becomes subject to dispossession, this chapter attempts to look into observations and assumptions about the responsibilities and actions taken by the Supreme Courts and the setting up and maintaining of the geographies of power associated to various settler societies. In attempting to heighten others' interest in exploring settler societies' land regimes that would aid in the development of the said research agenda of legal geography, the chapter introduces political geographer Oren Yiftachel's conception of ethnocratic settler societies. Aside from introducing the novel discipline referred to as Legal Geography that accounts for how Critical Legal Studies (CLS) may have favourable effects on Critical Local Geography (CLG), this chapter also presents how ethnocratic land regimes are created and sustained. Also, the chapter looks into the specific case of how the Israeli land regime was formulated through the Israeli legal system.
Jeremy Waldron
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546145
- eISBN:
- 9780191706462
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546145.003.0008
- Subject:
- Law, Philosophy of Law
This chapter highlights a dilemma for Dworkin arising from tension between his principle of integrity and his constructivism about legal background. A certain critique from the Critical Legal Studies ...
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This chapter highlights a dilemma for Dworkin arising from tension between his principle of integrity and his constructivism about legal background. A certain critique from the Critical Legal Studies (CLS) movement pushes Dworkin to be a constructivist regarding the background elements of a legal system. Dworkin must argue that the legal background of a legal system is constructively coherent: it is capable of being made coherent at the hands of a sufficiently resourceful interpreter. Dworkin also motivates a conception of law as integrity, which he invokes to justify the claim that making coherent sense of the existing legal materials, foreground and background, is something we are morally required to do. This chapter explores the following dilemma: If Dworkin hangs on to the integrity position, he makes it harder to respond to the scepticism of CLS via his constructivist argument. But if he weakens the integrity requirement, then he leaves himself defenceless against pragmatism about legal background.Less
This chapter highlights a dilemma for Dworkin arising from tension between his principle of integrity and his constructivism about legal background. A certain critique from the Critical Legal Studies (CLS) movement pushes Dworkin to be a constructivist regarding the background elements of a legal system. Dworkin must argue that the legal background of a legal system is constructively coherent: it is capable of being made coherent at the hands of a sufficiently resourceful interpreter. Dworkin also motivates a conception of law as integrity, which he invokes to justify the claim that making coherent sense of the existing legal materials, foreground and background, is something we are morally required to do. This chapter explores the following dilemma: If Dworkin hangs on to the integrity position, he makes it harder to respond to the scepticism of CLS via his constructivist argument. But if he weakens the integrity requirement, then he leaves himself defenceless against pragmatism about legal background.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0015
- Subject:
- Law, Philosophy of Law
This chapter presents a brief unpublished essay on David Price's critique of Critical Legal Studies (CLS) and defence of ‘legal liberalism’. The latter category, much promoted by Unger and others in ...
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This chapter presents a brief unpublished essay on David Price's critique of Critical Legal Studies (CLS) and defence of ‘legal liberalism’. The latter category, much promoted by Unger and others in the Movement, is not a safe description of the rights and rule of law that Price wishes to defend against CLS antipathy and subversion. Indeed, ‘liberalism’ is not a term fir for use in doing legal or political theory, as the example of Aristotle and Aquinas suggests. Nor should we concede as much as Price does to CLS claims about contradictions in the law.Less
This chapter presents a brief unpublished essay on David Price's critique of Critical Legal Studies (CLS) and defence of ‘legal liberalism’. The latter category, much promoted by Unger and others in the Movement, is not a safe description of the rights and rule of law that Price wishes to defend against CLS antipathy and subversion. Indeed, ‘liberalism’ is not a term fir for use in doing legal or political theory, as the example of Aristotle and Aquinas suggests. Nor should we concede as much as Price does to CLS claims about contradictions in the law.
Christopher Hutton
- Published in print:
- 2009
- Published Online:
- September 2012
- ISBN:
- 9780748633500
- eISBN:
- 9780748671489
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748633500.003.0002
- Subject:
- Linguistics, Applied Linguistics and Pedagogy
This chapter offers a brief introduction to topics and approaches in legal theory and language. It offers a critical summary of the differences between natural law and legal positivism, describes in ...
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This chapter offers a brief introduction to topics and approaches in legal theory and language. It offers a critical summary of the differences between natural law and legal positivism, describes in outline the formalist position as opposed to the realist, summarizes the idea of the rule of law in liberal ideology, and shows how this idea of the relative autonomy of the legal system and legal language comes under attack in radical approaches to law. It then looks at how the law and economics framework might deal with linguistic questions, and contrasts the different understanding of law and language in Luhmann and Habermas. The fundamental issue at stake is the notion of law's autonomy.Less
This chapter offers a brief introduction to topics and approaches in legal theory and language. It offers a critical summary of the differences between natural law and legal positivism, describes in outline the formalist position as opposed to the realist, summarizes the idea of the rule of law in liberal ideology, and shows how this idea of the relative autonomy of the legal system and legal language comes under attack in radical approaches to law. It then looks at how the law and economics framework might deal with linguistic questions, and contrasts the different understanding of law and language in Luhmann and Habermas. The fundamental issue at stake is the notion of law's autonomy.
Leigh Gilmore
- Published in print:
- 2017
- Published Online:
- January 2019
- ISBN:
- 9780231177146
- eISBN:
- 9780231543446
- Item type:
- book
- Publisher:
- Columbia University Press
- DOI:
- 10.7312/columbia/9780231177146.001.0001
- Subject:
- Society and Culture, Gender Studies
In 1991, Anita Hill's testimony during Clarence Thomas's Senate confirmation hearing brought the problem of sexual harassment to a public audience. Although widely believed by women, Hill was defamed ...
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In 1991, Anita Hill's testimony during Clarence Thomas's Senate confirmation hearing brought the problem of sexual harassment to a public audience. Although widely believed by women, Hill was defamed by conservatives and Thomas was confirmed to the Supreme Court. The tainting of Hill and her testimony is part of a larger social history in which women find themselves caught up in a system that refuses to believe what they say. Hill's experience shows how a tainted witness is not who someone is, but what someone can become. Why are women so often considered unreliable witnesses to their own experiences? How are women discredited in legal courts and in courts of public opinion? Why is women's testimony so often mired in controversies fueled by histories of slavery and colonialism? How do new feminist witnesses enter testimonial networks and disrupt doubt? Tainted Witness examines how gender, race, and doubt stick to women witnesses as their testimony circulates in search of an adequate witness. Judgment falls unequally upon women who bear witness, as well-known conflicts about testimonial authority in the late twentieth and early twenty-first centuries reveal. Women's testimonial accounts demonstrate both the symbolic potency of women's bodies and speech in the public sphere and the relative lack of institutional security and control to which they can lay claim. Each testimonial act follows in the wake of a long and invidious association of race and gender with lying that can be found to this day within legal courts and everyday practices of judgment, defining these locations as willfully unknowing and hostile to complex accounts of harm. Bringing together feminist, literary, and legal frameworks, Leigh Gilmore provides provocative readings of what happens when women's testimony is discredited. She demonstrates how testimony crosses jurisdictions, publics, and the unsteady line between truth and fiction in search of justice.Less
In 1991, Anita Hill's testimony during Clarence Thomas's Senate confirmation hearing brought the problem of sexual harassment to a public audience. Although widely believed by women, Hill was defamed by conservatives and Thomas was confirmed to the Supreme Court. The tainting of Hill and her testimony is part of a larger social history in which women find themselves caught up in a system that refuses to believe what they say. Hill's experience shows how a tainted witness is not who someone is, but what someone can become. Why are women so often considered unreliable witnesses to their own experiences? How are women discredited in legal courts and in courts of public opinion? Why is women's testimony so often mired in controversies fueled by histories of slavery and colonialism? How do new feminist witnesses enter testimonial networks and disrupt doubt? Tainted Witness examines how gender, race, and doubt stick to women witnesses as their testimony circulates in search of an adequate witness. Judgment falls unequally upon women who bear witness, as well-known conflicts about testimonial authority in the late twentieth and early twenty-first centuries reveal. Women's testimonial accounts demonstrate both the symbolic potency of women's bodies and speech in the public sphere and the relative lack of institutional security and control to which they can lay claim. Each testimonial act follows in the wake of a long and invidious association of race and gender with lying that can be found to this day within legal courts and everyday practices of judgment, defining these locations as willfully unknowing and hostile to complex accounts of harm. Bringing together feminist, literary, and legal frameworks, Leigh Gilmore provides provocative readings of what happens when women's testimony is discredited. She demonstrates how testimony crosses jurisdictions, publics, and the unsteady line between truth and fiction in search of justice.
Martin J. Adamian
- Published in print:
- 2008
- Published Online:
- August 2013
- ISBN:
- 9780262220842
- eISBN:
- 9780262285445
- Item type:
- chapter
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262220842.003.0004
- Subject:
- Environmental Science, Climate
This chapter examines the global climate regime, the idea of international environmental justice, and Critical Legal Studies (CLS) to assess the possibility of using international environmental laws ...
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This chapter examines the global climate regime, the idea of international environmental justice, and Critical Legal Studies (CLS) to assess the possibility of using international environmental laws to advance the ideals of justice expressed in the UN Framework Convention on Climate Change (UNFCCC). First, it examines the development and application of international law in a climate change mitigation regime, considers how international environmental justice is conceptualized, and then applies lessons from CLS to assess the prospects of promoting justice.Less
This chapter examines the global climate regime, the idea of international environmental justice, and Critical Legal Studies (CLS) to assess the possibility of using international environmental laws to advance the ideals of justice expressed in the UN Framework Convention on Climate Change (UNFCCC). First, it examines the development and application of international law in a climate change mitigation regime, considers how international environmental justice is conceptualized, and then applies lessons from CLS to assess the prospects of promoting justice.
Richard Posner
- Published in print:
- 2012
- Published Online:
- March 2016
- ISBN:
- 9780814737071
- eISBN:
- 9780814745434
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814737071.003.0003
- Subject:
- Law, Legal History
This chapter presents an interview with Richard Posner, a judge of the US Court of Appeals for the Seventh Circuit. He was formerly the Lee and Brena Freeman Professor of Law, and is currently a ...
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This chapter presents an interview with Richard Posner, a judge of the US Court of Appeals for the Seventh Circuit. He was formerly the Lee and Brena Freeman Professor of Law, and is currently a Senior Lecturer at the University of Chicago. Judge Posner is best known for his leadership and pioneering work in the law and economics field in the 1970s and 1980s. He was a founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. Topics covered during the interview include why he chose to become a legal academic; the intellectual climate while he was at Harvard Law School; his description of the major tenets of law and economics; his discourse with rights theorists, particularly Ronald Dworkin, as well as critical legal studies types, specifically Duncan Kennedy; and his engagement with the law and economics types today.Less
This chapter presents an interview with Richard Posner, a judge of the US Court of Appeals for the Seventh Circuit. He was formerly the Lee and Brena Freeman Professor of Law, and is currently a Senior Lecturer at the University of Chicago. Judge Posner is best known for his leadership and pioneering work in the law and economics field in the 1970s and 1980s. He was a founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. Topics covered during the interview include why he chose to become a legal academic; the intellectual climate while he was at Harvard Law School; his description of the major tenets of law and economics; his discourse with rights theorists, particularly Ronald Dworkin, as well as critical legal studies types, specifically Duncan Kennedy; and his engagement with the law and economics types today.
Charles Fried
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780198713012
- eISBN:
- 9780191781414
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198713012.003.0002
- Subject:
- Law, Philosophy of Law, Law of Obligations
Contract as Promise, published in 1981, was an attempt to provide a comprehensive theory of contract law, rooted in individualistic, classical liberal premises. The presiding genius of the work was ...
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Contract as Promise, published in 1981, was an attempt to provide a comprehensive theory of contract law, rooted in individualistic, classical liberal premises. The presiding genius of the work was Kant. Specific doctrines that did not fit this template were explained (away) as anomalies, as inevitable intrusions from adjacent areas of law or as just plain mistakes. For many years now the regnant theoretical approach, richly elaborated in and around contract law, has been the economic analysis of law. This chapter, first, notes the striking congruence between contract as promise and the economic analysis of contract law; second, seeks to explain that congruence as well as the divergence between the two accounts; and third, shows how the promise principle relates to competing concerns arising out of the practical necessities of administering legal institutions.Less
Contract as Promise, published in 1981, was an attempt to provide a comprehensive theory of contract law, rooted in individualistic, classical liberal premises. The presiding genius of the work was Kant. Specific doctrines that did not fit this template were explained (away) as anomalies, as inevitable intrusions from adjacent areas of law or as just plain mistakes. For many years now the regnant theoretical approach, richly elaborated in and around contract law, has been the economic analysis of law. This chapter, first, notes the striking congruence between contract as promise and the economic analysis of contract law; second, seeks to explain that congruence as well as the divergence between the two accounts; and third, shows how the promise principle relates to competing concerns arising out of the practical necessities of administering legal institutions.
Drucilla Cornell
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780823257577
- eISBN:
- 9780823261574
- Item type:
- chapter
- Publisher:
- Fordham University Press
- DOI:
- 10.5422/fordham/9780823257577.003.0009
- Subject:
- Philosophy, Political Philosophy
Since WWII, dignity has become an important legal and moral value in almost all of the instruments of human rights and international law, and has no been incorporated into constitutions as a ...
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Since WWII, dignity has become an important legal and moral value in almost all of the instruments of human rights and international law, and has no been incorporated into constitutions as a foundational value and ideal, including in the constitution of South Africa. Within South African jurisprudence and critical theory there has long been a disagreement between whether or not uBuntu could simply be encompassed in the ideal of dignity. This chapter argues that uBuntu and dignity can and should be distinguished, it tries to delineate their difference, and yet also defends a position that uBuntu is able to defend the European ideal of dignity, even as it goes beyond it in its demands for economic transformation.Less
Since WWII, dignity has become an important legal and moral value in almost all of the instruments of human rights and international law, and has no been incorporated into constitutions as a foundational value and ideal, including in the constitution of South Africa. Within South African jurisprudence and critical theory there has long been a disagreement between whether or not uBuntu could simply be encompassed in the ideal of dignity. This chapter argues that uBuntu and dignity can and should be distinguished, it tries to delineate their difference, and yet also defends a position that uBuntu is able to defend the European ideal of dignity, even as it goes beyond it in its demands for economic transformation.
Jacopo Martire
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9781474411929
- eISBN:
- 9781474435215
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9781474411929.003.0005
- Subject:
- Law, Philosophy of Law
On the basis of the preceding argument, the author posits that the emergence of a new emergent virtual understanding of the individual, has brought us to the absolute limit of the normalizing ...
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On the basis of the preceding argument, the author posits that the emergence of a new emergent virtual understanding of the individual, has brought us to the absolute limit of the normalizing complex. This vision of the subject as a virtual entity indicates a growing awareness of the presence of an existential uniqueness, or Otherness (born out of normalization’s inherent allusion to the Other as what lies beyond the norms), in everyone’s life that challenges the attempts at conceiving the social body in terms of normality. This has implications that are as yet undefined for our current legal system that has developed thus far in relation to the dynamics of normalization. Faced with the expansion of Otherness in our society, the author intimates that we may be forced to rethink the structure of our legal discourse, and imagine new foundations for the future of democracy and politics.Less
On the basis of the preceding argument, the author posits that the emergence of a new emergent virtual understanding of the individual, has brought us to the absolute limit of the normalizing complex. This vision of the subject as a virtual entity indicates a growing awareness of the presence of an existential uniqueness, or Otherness (born out of normalization’s inherent allusion to the Other as what lies beyond the norms), in everyone’s life that challenges the attempts at conceiving the social body in terms of normality. This has implications that are as yet undefined for our current legal system that has developed thus far in relation to the dynamics of normalization. Faced with the expansion of Otherness in our society, the author intimates that we may be forced to rethink the structure of our legal discourse, and imagine new foundations for the future of democracy and politics.
