Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0001
- Subject:
- Law, Philosophy of Law
This chapter begins with a discussion of the purpose of this book, which is to expose the failings and frailties of analytical jurisprudence and suggest an alternative approach to legal theory. It ...
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This chapter begins with a discussion of the purpose of this book, which is to expose the failings and frailties of analytical jurisprudence and suggest an alternative approach to legal theory. It then considers John Austin's The Province of Jurisprudence Determined, and argues that in establishing the provenance and province of jurisprudence, Austin also managed to compromise its usefulness and worth. The chapter presents a democratic approach to jurisprudence, and discusses three anti-analytical positions—the realist, naturalist, and non-ideological.Less
This chapter begins with a discussion of the purpose of this book, which is to expose the failings and frailties of analytical jurisprudence and suggest an alternative approach to legal theory. It then considers John Austin's The Province of Jurisprudence Determined, and argues that in establishing the provenance and province of jurisprudence, Austin also managed to compromise its usefulness and worth. The chapter presents a democratic approach to jurisprudence, and discusses three anti-analytical positions—the realist, naturalist, and non-ideological.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0003
- Subject:
- Law, Philosophy of Law
This chapter examines the nature and performance of the most favored mode of philosophical inquiry: conceptual analysis. It argues that analytical jurisprudence's practice of conceptual analysis is ...
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This chapter examines the nature and performance of the most favored mode of philosophical inquiry: conceptual analysis. It argues that analytical jurisprudence's practice of conceptual analysis is not neutral between different political systems of governance. Its account of law might easily capture the operation of authoritarian regimes and some industrialized modern states (e.g., the United Kingdom and the United States), but it fails to accommodate some other kinds of governmental arrangements. In particular, it does not lend itself to be applied to strongly democratic modes of governance and, on occasion, places considerable obstacles in the way of their development. Consequently, contrary to their most cherished contentions, analytical jurists must defend the partial thrust of their analytical jurisprudence in directly and substantively normative terms. Divested of its universalistic claims, analytical jurisprudence becomes exactly the kind of politicized theory that it claims to reject and from which it strives to distinguish itself.Less
This chapter examines the nature and performance of the most favored mode of philosophical inquiry: conceptual analysis. It argues that analytical jurisprudence's practice of conceptual analysis is not neutral between different political systems of governance. Its account of law might easily capture the operation of authoritarian regimes and some industrialized modern states (e.g., the United Kingdom and the United States), but it fails to accommodate some other kinds of governmental arrangements. In particular, it does not lend itself to be applied to strongly democratic modes of governance and, on occasion, places considerable obstacles in the way of their development. Consequently, contrary to their most cherished contentions, analytical jurists must defend the partial thrust of their analytical jurisprudence in directly and substantively normative terms. Divested of its universalistic claims, analytical jurisprudence becomes exactly the kind of politicized theory that it claims to reject and from which it strives to distinguish itself.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0002
- Subject:
- Law, Philosophy of Law
This chapter reviews Austin's approach to jurisprudence and traces its continuing influence on the performance of jurisprudence today. Rather than offer a flat chronological narrative, it presents a ...
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This chapter reviews Austin's approach to jurisprudence and traces its continuing influence on the performance of jurisprudence today. Rather than offer a flat chronological narrative, it presents a more schematic survey and captures the important themes that make better sense of the contemporary jurisprudential project—conceptual analysis, the law/morality relationship, its methodological orientation, and power's role. Austin's The Province of Jurisprudence Determined is situated within a more general intellectual and social context in order to emphasize the extent to which his own legal theory and jurisprudence more generally are part of a contested political tradition. In particular, the chapter assesses the (un)democratic thrust of his legal theory and lays out the challenge to be met by later jurists in improving or making good on that democratic deficit. Throughout the chapter, Austin's pioneering work is used to set the terms for the continuing struggle over the philosophical and political soul of contemporary jurisprudence.Less
This chapter reviews Austin's approach to jurisprudence and traces its continuing influence on the performance of jurisprudence today. Rather than offer a flat chronological narrative, it presents a more schematic survey and captures the important themes that make better sense of the contemporary jurisprudential project—conceptual analysis, the law/morality relationship, its methodological orientation, and power's role. Austin's The Province of Jurisprudence Determined is situated within a more general intellectual and social context in order to emphasize the extent to which his own legal theory and jurisprudence more generally are part of a contested political tradition. In particular, the chapter assesses the (un)democratic thrust of his legal theory and lays out the challenge to be met by later jurists in improving or making good on that democratic deficit. Throughout the chapter, Austin's pioneering work is used to set the terms for the continuing struggle over the philosophical and political soul of contemporary jurisprudence.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0005
- Subject:
- Law, Philosophy of Law
The attractions of the scientific method have been given a new lease on jurisprudential life. The lack of scientific ambition is considered by some to be the failing of contemporary legal theory, and ...
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The attractions of the scientific method have been given a new lease on jurisprudential life. The lack of scientific ambition is considered by some to be the failing of contemporary legal theory, and there is currently a marked effort to take scientific inquiry more seriously and to celebrate the birth of a New Legal Realism. By extending science's data-rich and causality-dominant methods to law's social practices and adjudicative routines, the hope is that jurisprudence will deliver some of the secure truths and dependable knowledge that have so far eluded traditional analytical jurisprudence. This chapter challenges this scientific turn towards the tried-and-true methods of natural science as being entirely the wrong direction; a naturalized jurisprudential methodology is less a scientific undertaking and more a scientistic smash-and-grab. Moreover, contrary to the epistemological claims of its supporters, such a scientific rendition of analytical jurisprudence is far from a turn away from morality.Less
The attractions of the scientific method have been given a new lease on jurisprudential life. The lack of scientific ambition is considered by some to be the failing of contemporary legal theory, and there is currently a marked effort to take scientific inquiry more seriously and to celebrate the birth of a New Legal Realism. By extending science's data-rich and causality-dominant methods to law's social practices and adjudicative routines, the hope is that jurisprudence will deliver some of the secure truths and dependable knowledge that have so far eluded traditional analytical jurisprudence. This chapter challenges this scientific turn towards the tried-and-true methods of natural science as being entirely the wrong direction; a naturalized jurisprudential methodology is less a scientific undertaking and more a scientistic smash-and-grab. Moreover, contrary to the epistemological claims of its supporters, such a scientific rendition of analytical jurisprudence is far from a turn away from morality.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0007
- Subject:
- Law, Philosophy of Law
This chapter offers an expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin's insights have been ...
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This chapter offers an expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin's insights have been neglected, it explores how such a pragmatic account of power recasts the practices and problems of legal theory and law. The fact is that too much jurisprudence feigns to skate on “the frictionless ice of philosophical discourse”. In contrast, it is argued that it is only against and within a jagged process of power that the workings of law and legal theory can be best appreciated and reworked.Less
This chapter offers an expansive and nuanced account of power that is more attuned to the complexities of contemporary society. After canvassing the various ways in which Austin's insights have been neglected, it explores how such a pragmatic account of power recasts the practices and problems of legal theory and law. The fact is that too much jurisprudence feigns to skate on “the frictionless ice of philosophical discourse”. In contrast, it is argued that it is only against and within a jagged process of power that the workings of law and legal theory can be best appreciated and reworked.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0004
- Subject:
- Law, Philosophy of Law
This chapter explores the link between law and morality. It considers the positivist and moralist accounts of jurisprudence, and contends that the best arguments put forward to defend the validity, ...
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This chapter explores the link between law and morality. It considers the positivist and moralist accounts of jurisprudence, and contends that the best arguments put forward to defend the validity, relevance, and justification for a positivist account of jurisprudence are unconvincing. Apart from the assertion that it is possible for there to be a bad legal system (to which almost all jurists, moralist and positivist, can accede), legal positivism has little to offer. However, the moralist case is also of limited constructive worth when viewed from a democratic perspective; while it insists that there is an inescapable moral dimension to determining law's validity, it seeks to avoid and contain the subversive implications of that powerful insight. The chapter looks at three different responses—soft/inclusive, hard/exclusive, and ethical positivism—and assesses their merits from a democratically leaning political alternative account of jurisprudence.Less
This chapter explores the link between law and morality. It considers the positivist and moralist accounts of jurisprudence, and contends that the best arguments put forward to defend the validity, relevance, and justification for a positivist account of jurisprudence are unconvincing. Apart from the assertion that it is possible for there to be a bad legal system (to which almost all jurists, moralist and positivist, can accede), legal positivism has little to offer. However, the moralist case is also of limited constructive worth when viewed from a democratic perspective; while it insists that there is an inescapable moral dimension to determining law's validity, it seeks to avoid and contain the subversive implications of that powerful insight. The chapter looks at three different responses—soft/inclusive, hard/exclusive, and ethical positivism—and assesses their merits from a democratically leaning political alternative account of jurisprudence.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0006
- Subject:
- Law, Philosophy of Law
This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this ...
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This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this anti-positivist approach and its connection to a more democratized rendition of jurisprudence.Less
This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this anti-positivist approach and its connection to a more democratized rendition of jurisprudence.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0009
- Subject:
- Law, Philosophy of Law
This chapter pulls together the main threads of the argument presented in the book and defends this proposed revitalization of legal theory as an adjunct location of democratic politics more ...
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This chapter pulls together the main threads of the argument presented in the book and defends this proposed revitalization of legal theory as an adjunct location of democratic politics more generally. After tackling the contested relationship between philosophical pragmatism and political democracy, it defends strong democracy as an institutional complement to the experimentalist bent of pragmatic theorizing. It then rounds out the defense of the political province of democratic legal theory by brief reference to the literary insights of George Eliot's Middlemarch.Less
This chapter pulls together the main threads of the argument presented in the book and defends this proposed revitalization of legal theory as an adjunct location of democratic politics more generally. After tackling the contested relationship between philosophical pragmatism and political democracy, it defends strong democracy as an institutional complement to the experimentalist bent of pragmatic theorizing. It then rounds out the defense of the political province of democratic legal theory by brief reference to the literary insights of George Eliot's Middlemarch.
Keith Culver and Michael Giudice
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.003.0013
- Subject:
- Law, Philosophy of Law
Analytical jurisprudence has long struggled to explain the continuity of legal systems in the face of challenges such as revolution, devolution, and emergencies. This chapter presents the legal ...
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Analytical jurisprudence has long struggled to explain the continuity of legal systems in the face of challenges such as revolution, devolution, and emergencies. This chapter presents the legal pluralist challenge to Hart's and Raz's attempts to resolve the continuity problem. It argues that while neither Hart's nor Raz's framing of or response to the problem are persuasive, the legal pluralist response to its own challenge to legal theory is also unpersuasive. The problem of continuity remains to be resolved in both state-based legal systems and non-state legal contexts, in future work whose shape is outlined here.Less
Analytical jurisprudence has long struggled to explain the continuity of legal systems in the face of challenges such as revolution, devolution, and emergencies. This chapter presents the legal pluralist challenge to Hart's and Raz's attempts to resolve the continuity problem. It argues that while neither Hart's nor Raz's framing of or response to the problem are persuasive, the legal pluralist response to its own challenge to legal theory is also unpersuasive. The problem of continuity remains to be resolved in both state-based legal systems and non-state legal contexts, in future work whose shape is outlined here.
H. L. A. Hart
- Published in print:
- 1983
- Published Online:
- March 2012
- ISBN:
- 9780198253884
- eISBN:
- 9780191681431
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253884.003.0013
- Subject:
- Law, Philosophy of Law
This chapter begins by expressing the regret that so few of Jhering's great works are translated into English. It is an intellectual tragedy; there is no English translation even of the masterly ...
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This chapter begins by expressing the regret that so few of Jhering's great works are translated into English. It is an intellectual tragedy; there is no English translation even of the masterly Geist des Römischen Rechts nor of Scherz und Ernst in der Jurisprudenz, nor even of the essay Im Juristischen Begriffshimmel which is discussed here, though some fragments of the latter appeared in 1951 in an English translation in an American collection of readings in jurisprudence and legal philosophy. In addition, this chapter provides in summary form the main intellectual failings against which Jhering's satire is directed. Moreover, the chapter explains the sensation of déjà vu, even if not déjà lu, in Jhering. It then turns to what is called by American and English lawyers ‘analytical jurisprudence’.Less
This chapter begins by expressing the regret that so few of Jhering's great works are translated into English. It is an intellectual tragedy; there is no English translation even of the masterly Geist des Römischen Rechts nor of Scherz und Ernst in der Jurisprudenz, nor even of the essay Im Juristischen Begriffshimmel which is discussed here, though some fragments of the latter appeared in 1951 in an English translation in an American collection of readings in jurisprudence and legal philosophy. In addition, this chapter provides in summary form the main intellectual failings against which Jhering's satire is directed. Moreover, the chapter explains the sensation of déjà vu, even if not déjà lu, in Jhering. It then turns to what is called by American and English lawyers ‘analytical jurisprudence’.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804756785
- eISBN:
- 9780804779562
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804756785.003.0002
- Subject:
- Law, Philosophy of Law
The objective of jurisprudence is to achieve a systematic and general understanding of law. Law aims to organize and order human communities, as well as protect and regulate human beings as members ...
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The objective of jurisprudence is to achieve a systematic and general understanding of law. Law aims to organize and order human communities, as well as protect and regulate human beings as members of communities. Theoretical study of this business of law may overlap with and draw from political and moral philosophy, sociology, history, descriptive political science, analytical philosophy, or logic and rhetoric. H. L. A. Hart views jurisprudence as primarily a branch of philosophy in which philosophical ideas and methods are applied both to the criticism of law and to the conceptual analysis of law, legal systems, and legal concepts. This chapter examines Hart's analytical jurisprudence and linguistic philosophy as well as his reputation as a moral critic of law. It also looks at his role in the liberalization of the law that occurred in the United Kingdom from 1955 to 1970.Less
The objective of jurisprudence is to achieve a systematic and general understanding of law. Law aims to organize and order human communities, as well as protect and regulate human beings as members of communities. Theoretical study of this business of law may overlap with and draw from political and moral philosophy, sociology, history, descriptive political science, analytical philosophy, or logic and rhetoric. H. L. A. Hart views jurisprudence as primarily a branch of philosophy in which philosophical ideas and methods are applied both to the criticism of law and to the conceptual analysis of law, legal systems, and legal concepts. This chapter examines Hart's analytical jurisprudence and linguistic philosophy as well as his reputation as a moral critic of law. It also looks at his role in the liberalization of the law that occurred in the United Kingdom from 1955 to 1970.
Neil MacCormick
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804756785
- eISBN:
- 9780804779562
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804756785.001.0001
- Subject:
- Law, Philosophy of Law
This substantially revised second edition delivers an introduction to the life and works of H. L. A. Hart, noted Professor of Jurisprudence at the University of Oxford from 1952 to 1968. Hart ...
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This substantially revised second edition delivers an introduction to the life and works of H. L. A. Hart, noted Professor of Jurisprudence at the University of Oxford from 1952 to 1968. Hart established a worldwide reputation through his powerful philosophical arguments and writings in favor of liberalizing criminal law and applying humane principles to punishment. This book demonstrates that he also made important contributions to analytical jurisprudence, notably by clarifying many terms and concepts used in legal discourse, including the concept of law itself. Taking into account developments since the first edition was published, it provides a constructively critical account of Hart's legal thought. The work includes Hart's ideas on legal reasoning, judicial discretion, the social sources of law, the theory of legal rules, the sovereignty of individual conscience, the notion of obligation, the concept of a right, and the relationship between morality and the law. The book actively engages with current scholarly interpretations, bringing this account of England's greatest legal philosopher of the twentieth century up-to-date.Less
This substantially revised second edition delivers an introduction to the life and works of H. L. A. Hart, noted Professor of Jurisprudence at the University of Oxford from 1952 to 1968. Hart established a worldwide reputation through his powerful philosophical arguments and writings in favor of liberalizing criminal law and applying humane principles to punishment. This book demonstrates that he also made important contributions to analytical jurisprudence, notably by clarifying many terms and concepts used in legal discourse, including the concept of law itself. Taking into account developments since the first edition was published, it provides a constructively critical account of Hart's legal thought. The work includes Hart's ideas on legal reasoning, judicial discretion, the social sources of law, the theory of legal rules, the sovereignty of individual conscience, the notion of obligation, the concept of a right, and the relationship between morality and the law. The book actively engages with current scholarly interpretations, bringing this account of England's greatest legal philosopher of the twentieth century up-to-date.
Allan C. Hutchinson
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195343250
- eISBN:
- 9780199867752
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343250.003.0008
- Subject:
- Law, Philosophy of Law
This chapter considers the defense of adjudication as not merely an acceptable feature of democracy, but also as an indispensable component in a flourishing democratic society. It examines the ...
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This chapter considers the defense of adjudication as not merely an acceptable feature of democracy, but also as an indispensable component in a flourishing democratic society. It examines the central dynamic at work in efforts to justify judicial review in constitutional democracies. By reference both to situated theoretical arguments and historical evidence, the chapter proposes a “hard-core” case against judicial review and suggests how strong democracy might take up the resulting institutional slack. Throughout the chapter, it is emphasized how democracy is better understood as being not a ground or foundation for politics, but a dynamic process through which politics is experienced and evaluated; the institutional forms and social practices of democracy must themselves be open to debate and revision in line with the experience of society's participating members.Less
This chapter considers the defense of adjudication as not merely an acceptable feature of democracy, but also as an indispensable component in a flourishing democratic society. It examines the central dynamic at work in efforts to justify judicial review in constitutional democracies. By reference both to situated theoretical arguments and historical evidence, the chapter proposes a “hard-core” case against judicial review and suggests how strong democracy might take up the resulting institutional slack. Throughout the chapter, it is emphasized how democracy is better understood as being not a ground or foundation for politics, but a dynamic process through which politics is experienced and evaluated; the institutional forms and social practices of democracy must themselves be open to debate and revision in line with the experience of society's participating members.
d'Aspremont Jean
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199696314
- eISBN:
- 9780191732201
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199696314.003.0008
- Subject:
- Law, Public International Law, Philosophy of Law
Chapter 7 has broached some avenues to revitalize the current law-ascertainment criteria in international law by moving away from intent but did not provide any indication as to the foundations of ...
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Chapter 7 has broached some avenues to revitalize the current law-ascertainment criteria in international law by moving away from intent but did not provide any indication as to the foundations of such formal law-ascertainment criteria. This is the object of chapter 8 which argues that any set of formal yardsticks of law-ascertainment shaped through ordinary language would remain inextricably beset by the indeterminacy of language if it were not grounded in the social practice of those who apply them. This chapter thus turns to the foundations of law-ascertainment in the theory of the sources of international law and, trying to offset the anti-theoretical bent of the international legal scholarship, demonstrates the possibility of constructing a theory of formal law-ascertainment grounded in the social practice of law-applying authorities. In doing so, this chapter seeks to rejuvenate the social thesis as it has been elaborated in English analytical jurisprudence by borrowing from a variety of thinkers like Wittgenstein and Tamanaha. This brings it to argue that the concept of international law-applying authorities must be broadened as to include a whole new series of international actors. It also points to the vainness of the question of the validity of international law as a whole. It simultaneously shows that the social thesis, if adequately rejuvenated in the framework of the theory of sources of international law, can continue to benefit from the insights from sociological studies, critical legal studies, third world approaches or feminist critiques and is surely not incompatible with them.Less
Chapter 7 has broached some avenues to revitalize the current law-ascertainment criteria in international law by moving away from intent but did not provide any indication as to the foundations of such formal law-ascertainment criteria. This is the object of chapter 8 which argues that any set of formal yardsticks of law-ascertainment shaped through ordinary language would remain inextricably beset by the indeterminacy of language if it were not grounded in the social practice of those who apply them. This chapter thus turns to the foundations of law-ascertainment in the theory of the sources of international law and, trying to offset the anti-theoretical bent of the international legal scholarship, demonstrates the possibility of constructing a theory of formal law-ascertainment grounded in the social practice of law-applying authorities. In doing so, this chapter seeks to rejuvenate the social thesis as it has been elaborated in English analytical jurisprudence by borrowing from a variety of thinkers like Wittgenstein and Tamanaha. This brings it to argue that the concept of international law-applying authorities must be broadened as to include a whole new series of international actors. It also points to the vainness of the question of the validity of international law as a whole. It simultaneously shows that the social thesis, if adequately rejuvenated in the framework of the theory of sources of international law, can continue to benefit from the insights from sociological studies, critical legal studies, third world approaches or feminist critiques and is surely not incompatible with them.
H. L. A. Hart
- Published in print:
- 1982
- Published Online:
- March 2012
- ISBN:
- 9780198254683
- eISBN:
- 9780191681509
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198254683.003.0006
- Subject:
- Law, Philosophy of Law
Bentham's Of Laws in General is a remarkable work with a remarkable history. This chapter provides a brief mention of the salient features of the story. Of Laws in General is in fact a continuation ...
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Bentham's Of Laws in General is a remarkable work with a remarkable history. This chapter provides a brief mention of the salient features of the story. Of Laws in General is in fact a continuation of Bentham's best-known work An Introduction to the Principles of Morals and Legislation. The latter work was printed in 1780 but its publication was held back by Bentham for nine years. This chapter expounds the main features of this extraordinary work. Its originality and power certainly make it the greatest of Bentham's contributions to analytical jurisprudence, and this chapter states that it is clear that, had it been published in his lifetime, it, rather than John Austin's later and obviously derivative work, would have dominated English jurisprudence, and that analytical jurisprudence, not only in England, would have advanced far more rapidly and branched out in more fertile ways than it has since Bentham's days.Less
Bentham's Of Laws in General is a remarkable work with a remarkable history. This chapter provides a brief mention of the salient features of the story. Of Laws in General is in fact a continuation of Bentham's best-known work An Introduction to the Principles of Morals and Legislation. The latter work was printed in 1780 but its publication was held back by Bentham for nine years. This chapter expounds the main features of this extraordinary work. Its originality and power certainly make it the greatest of Bentham's contributions to analytical jurisprudence, and this chapter states that it is clear that, had it been published in his lifetime, it, rather than John Austin's later and obviously derivative work, would have dominated English jurisprudence, and that analytical jurisprudence, not only in England, would have advanced far more rapidly and branched out in more fertile ways than it has since Bentham's days.
Neil MacCormick
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780198267911
- eISBN:
- 9780191714832
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267911.001.0001
- Subject:
- Law, Philosophy of Law
This book offers an original account of the nature of law and legal systems in the contemporary world. It provides the definitive statement of Sir Neil MacCormick's well-known ‘institutional theory ...
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This book offers an original account of the nature of law and legal systems in the contemporary world. It provides the definitive statement of Sir Neil MacCormick's well-known ‘institutional theory of law’, defining law as ‘institutional normative order’ and explaining each of these three terms in depth. It attempts to fulfill the need for a 21st century introduction to legal theory marking a fresh start such as was achieved in the last century by H. L. A. Hart's The Concept of Law. Institutions of Law is written with a view to elucidating law, legal concepts, and legal institutions in a manner that takes account of current scholarly controversies but does not get bogged down in them. It shows how law relates to the state and civil society, establishing the conditions of social peace and a functioning economy. In so doing, it takes account of recent developments in the sociology of law, particularly ‘system theory’. It also seeks to clarify the nature of claims to ‘knowledge of law’ and thus indicate the possibility of legal studies having a genuinely ‘scientific’ character. It shows that there is an essential value-orientation of all work of this kind, so that valid analytical jurisprudence not merely need not, but cannot, be ‘positivist’ as that term has come to be understood. Nevertheless, it is explained why law and morality are genuinely distinct by virtue of the positive character of law contrasted with the autonomy that is foundational for morality.Less
This book offers an original account of the nature of law and legal systems in the contemporary world. It provides the definitive statement of Sir Neil MacCormick's well-known ‘institutional theory of law’, defining law as ‘institutional normative order’ and explaining each of these three terms in depth. It attempts to fulfill the need for a 21st century introduction to legal theory marking a fresh start such as was achieved in the last century by H. L. A. Hart's The Concept of Law. Institutions of Law is written with a view to elucidating law, legal concepts, and legal institutions in a manner that takes account of current scholarly controversies but does not get bogged down in them. It shows how law relates to the state and civil society, establishing the conditions of social peace and a functioning economy. In so doing, it takes account of recent developments in the sociology of law, particularly ‘system theory’. It also seeks to clarify the nature of claims to ‘knowledge of law’ and thus indicate the possibility of legal studies having a genuinely ‘scientific’ character. It shows that there is an essential value-orientation of all work of this kind, so that valid analytical jurisprudence not merely need not, but cannot, be ‘positivist’ as that term has come to be understood. Nevertheless, it is explained why law and morality are genuinely distinct by virtue of the positive character of law contrasted with the autonomy that is foundational for morality.
Mark C. Murphy
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199675517
- eISBN:
- 9780191757280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199675517.003.0002
- Subject:
- Law, Philosophy of Law
This chapter considers the role that the weak natural law thesis — the claim that any law that fails to be a rational standard for conduct is defective as law — in providing an account of the nature ...
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This chapter considers the role that the weak natural law thesis — the claim that any law that fails to be a rational standard for conduct is defective as law — in providing an account of the nature of law. It first considers and rejects some common objections to the weak natural law thesis. It then argues that the weak natural law thesis plays its role in natural law theory by way of an Aristotelian explanatory structure called ‘hypothetical necessity’: if it belongs to the office of law to be a rational standard for conduct, and a norm will be constitutionally unable to carry out that office unless it exhibits some feature, then that feature necessarily belongs to law. The chapter shows that if the weak natural law thesis is true and hypothetical necessity is an appropriate explanatory structure, a variety of positivist theses about false must be false.Less
This chapter considers the role that the weak natural law thesis — the claim that any law that fails to be a rational standard for conduct is defective as law — in providing an account of the nature of law. It first considers and rejects some common objections to the weak natural law thesis. It then argues that the weak natural law thesis plays its role in natural law theory by way of an Aristotelian explanatory structure called ‘hypothetical necessity’: if it belongs to the office of law to be a rational standard for conduct, and a norm will be constitutionally unable to carry out that office unless it exhibits some feature, then that feature necessarily belongs to law. The chapter shows that if the weak natural law thesis is true and hypothetical necessity is an appropriate explanatory structure, a variety of positivist theses about false must be false.
d'Aspremont Jean
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199696314
- eISBN:
- 9780191732201
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199696314.003.0001
- Subject:
- Law, Public International Law, Philosophy of Law
This introductory chapter provides the background of the argument. It starts by describing the contemporary move away from the necessity to distinguish law from non-law and the growing tendency to ...
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This introductory chapter provides the background of the argument. It starts by describing the contemporary move away from the necessity to distinguish law from non-law and the growing tendency to construe international law as a continuum. It then briefly outlines the formal theory of ascertainment of international legal rules that is put forward in the book. It explains how the argument rests on a rejuvenated and modernized understanding of the source and social theses as they were elaborated in English analytical jurisprudence. The chapter ends with a number of caveats pertaining to the ambit and the limits of the argument. In particular, it explains how the theory of ascertainment provided by the book differentiates itself from current projects like global administrative law or the study on the international exercise of public authority. It also contends that formalism, while being a useful theory of ascertainment, certainly is insufficient to describe the whole phenomenon of law.Less
This introductory chapter provides the background of the argument. It starts by describing the contemporary move away from the necessity to distinguish law from non-law and the growing tendency to construe international law as a continuum. It then briefly outlines the formal theory of ascertainment of international legal rules that is put forward in the book. It explains how the argument rests on a rejuvenated and modernized understanding of the source and social theses as they were elaborated in English analytical jurisprudence. The chapter ends with a number of caveats pertaining to the ambit and the limits of the argument. In particular, it explains how the theory of ascertainment provided by the book differentiates itself from current projects like global administrative law or the study on the international exercise of public authority. It also contends that formalism, while being a useful theory of ascertainment, certainly is insufficient to describe the whole phenomenon of law.
Eugenio Bulygin
Carlos Bernal, Carla Huerta, Tecla Mazzarese, José Juan Moreso, Pablo E. Navarro, and Stanley L. Paulson (eds)
- Published in print:
- 2015
- Published Online:
- September 2015
- ISBN:
- 9780198729365
- eISBN:
- 9780191796272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198729365.001.0001
- Subject:
- Law, Philosophy of Law
This book engages with the thought of some of the major figures in legal philosophy in the English-speaking world, including H. L. A. Hart, Ronald Dworkin, and Joseph Raz, as it offers a fresh ...
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This book engages with the thought of some of the major figures in legal philosophy in the English-speaking world, including H. L. A. Hart, Ronald Dworkin, and Joseph Raz, as it offers a fresh perspective on the role of civil law in Argentina. The chapters deal with topics familiar under the rubric of analytical jurisprudence-interpretation and judicial reasoning, validity and efficacy of law, legal positivism and the problem of normativity, completeness, and consistency of the legal system, the nature of legal norms, and the role of deontic logic in the law. The views expressed in this book — defended with hard-hitting arguments — are often unorthodox. The book challenges the received opinion on gaps in the law, on the character of legal efficacy, on the oft-claimed dependent character of permissory norms, and on the criteria of legal validity.Less
This book engages with the thought of some of the major figures in legal philosophy in the English-speaking world, including H. L. A. Hart, Ronald Dworkin, and Joseph Raz, as it offers a fresh perspective on the role of civil law in Argentina. The chapters deal with topics familiar under the rubric of analytical jurisprudence-interpretation and judicial reasoning, validity and efficacy of law, legal positivism and the problem of normativity, completeness, and consistency of the legal system, the nature of legal norms, and the role of deontic logic in the law. The views expressed in this book — defended with hard-hitting arguments — are often unorthodox. The book challenges the received opinion on gaps in the law, on the character of legal efficacy, on the oft-claimed dependent character of permissory norms, and on the criteria of legal validity.
