Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.001.0001
- Subject:
- Law, Philosophy of Law
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit ...
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Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.Less
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0006
- Subject:
- Law, Philosophy of Law
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial ...
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This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial Contracts, are no modern peculiarity. On the contrary: European private law has long been developed on the basis of texts that were largely independent of any political domination. This becomes apparent from the transjurisdictional character of most non-legislative codifications. Thus, private law has mostly been, and still is to a large degree, autonomous from the states' political system.Less
This concluding chapter argues that non-legislative codifications, such as the American Restatements, the Principles of European Contract Law, and the UNIDROIT Principles of International Commercial Contracts, are no modern peculiarity. On the contrary: European private law has long been developed on the basis of texts that were largely independent of any political domination. This becomes apparent from the transjurisdictional character of most non-legislative codifications. Thus, private law has mostly been, and still is to a large degree, autonomous from the states' political system.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0005
- Subject:
- Law, Philosophy of Law
This chapter addresses the question of how legal authority is made. More specifically, it asks how non-legislative reference texts can achieve such a high degree of authority that the participants in ...
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This chapter addresses the question of how legal authority is made. More specifically, it asks how non-legislative reference texts can achieve such a high degree of authority that the participants in legal discourse may rely on such texts as an ultimate source of the law. Even if a full answer to this question is not possible, because the legal authority of an individual reference text is always the result of an individual historical process of recognition that cannot be fully explained on the basis of abstract theory alone, and because such processes are often connected with social struggle for influence, wealth, and reputation, it may be possible, nevertheless, to identify and better understand some factors contributing to the authority of a legal reference text.Less
This chapter addresses the question of how legal authority is made. More specifically, it asks how non-legislative reference texts can achieve such a high degree of authority that the participants in legal discourse may rely on such texts as an ultimate source of the law. Even if a full answer to this question is not possible, because the legal authority of an individual reference text is always the result of an individual historical process of recognition that cannot be fully explained on the basis of abstract theory alone, and because such processes are often connected with social struggle for influence, wealth, and reputation, it may be possible, nevertheless, to identify and better understand some factors contributing to the authority of a legal reference text.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0013
- Subject:
- Law, Philosophy of Law
This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional ...
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This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional interpretation depend in part on the theory of constitutional authority. In determining the conditions for constitutional legitimacy, the theory of the authority of the constitution contributes to the determination of principles of interpretation. It is argued that this sound principle is also the source of many false analogies motivated by attempts to assimilate the authority of the constitution to that of other parts of the law.Less
This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional interpretation depend in part on the theory of constitutional authority. In determining the conditions for constitutional legitimacy, the theory of the authority of the constitution contributes to the determination of principles of interpretation. It is argued that this sound principle is also the source of many false analogies motivated by attempts to assimilate the authority of the constitution to that of other parts of the law.
Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter begins with a brief discussion of the problems associated with law-making and its application in legal practice. It then sets out the purpose of the book, which is to ...
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This introductory chapter begins with a brief discussion of the problems associated with law-making and its application in legal practice. It then sets out the purpose of the book, which is to further clarify the classical understanding of the legal process in general, and of codifications in particular. The analysis focuses on specific legal texts and their form, rather than on legal rules. Here, the main argument proceeds from the historical observation that — before and besides the modern legislative codifications — there have always been non-legislative codifications and other basic reference texts: law books, laying down a comprehensive body of norms, which were not issued by legislators but nevertheless were regarded as effectively binding in legal discourse.Less
This introductory chapter begins with a brief discussion of the problems associated with law-making and its application in legal practice. It then sets out the purpose of the book, which is to further clarify the classical understanding of the legal process in general, and of codifications in particular. The analysis focuses on specific legal texts and their form, rather than on legal rules. Here, the main argument proceeds from the historical observation that — before and besides the modern legislative codifications — there have always been non-legislative codifications and other basic reference texts: law books, laying down a comprehensive body of norms, which were not issued by legislators but nevertheless were regarded as effectively binding in legal discourse.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.001.0001
- Subject:
- Law, Philosophy of Law
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an ...
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Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.Less
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.003.0003
- Subject:
- Law, Philosophy of Law
This chapter explores some prominent strategies for resolving the problem of legal authority. It first defines the scope of the inquiry: A plausible account of legal authority must provide ...
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This chapter explores some prominent strategies for resolving the problem of legal authority. It first defines the scope of the inquiry: A plausible account of legal authority must provide content-independent reasons to obey the law, but those reasons need not support an absolute duty of obedience. The chapter then canvasses two popular attempts to justify legal authority: epistemic-guidance accounts, which trace law's authority to its superior capacity to identify morally correct action; and consensualist accounts, which trace authority to actual or constructive acts of consent. The chapter argues that each of these approaches is inadequate to justify general legal authority. It then introduces an alternative dispute-resolution account, rooted in Hobbes, by which legal authority stems from the imperative to avoid or resolve costly conflict. Before elucidating that account in subsequent chapters, the chapter assesses a fourth type of strategy, one based on the value of coordination, and suggests that it is essentially a variant of a dispute-resolution account.Less
This chapter explores some prominent strategies for resolving the problem of legal authority. It first defines the scope of the inquiry: A plausible account of legal authority must provide content-independent reasons to obey the law, but those reasons need not support an absolute duty of obedience. The chapter then canvasses two popular attempts to justify legal authority: epistemic-guidance accounts, which trace law's authority to its superior capacity to identify morally correct action; and consensualist accounts, which trace authority to actual or constructive acts of consent. The chapter argues that each of these approaches is inadequate to justify general legal authority. It then introduces an alternative dispute-resolution account, rooted in Hobbes, by which legal authority stems from the imperative to avoid or resolve costly conflict. Before elucidating that account in subsequent chapters, the chapter assesses a fourth type of strategy, one based on the value of coordination, and suggests that it is essentially a variant of a dispute-resolution account.
Tom Tyler and Lindsay Rankin
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199737512
- eISBN:
- 9780199918638
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737512.003.0021
- Subject:
- Psychology, Social Psychology
Ideology includes a set of shared assumptions about “truths” which are widely perceived as self-evident. This chapter focuses upon a set of truths concerning human nature in relationship to the law ...
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Ideology includes a set of shared assumptions about “truths” which are widely perceived as self-evident. This chapter focuses upon a set of truths concerning human nature in relationship to the law and legal authority. Those truths are united by their exaggerated belief in the effectiveness of instrumental approaches to people. An instrumental approach is one that seeks to shape behavior by either providing people with incentives or threatening to (or actually) punishing them. In law, the focus is on the efficacy of threatening to (or actually) punishing people for rule breaking behavior. This chapter argues for several basic propositions. First, people within our society share the belief that instrumental mechanisms are effective ways of motivating people—that punishment “works.” Second, empirical evidence consistently contradicts that belief. Third, there are alternative approaches that work better. Finally, the persistence of flawed beliefs despite contradictory evidence suggests that these beliefs are part of a culturally transmitted and supported ideology. This chapter concludes by discussing some of the reasons that this ideology persists.Less
Ideology includes a set of shared assumptions about “truths” which are widely perceived as self-evident. This chapter focuses upon a set of truths concerning human nature in relationship to the law and legal authority. Those truths are united by their exaggerated belief in the effectiveness of instrumental approaches to people. An instrumental approach is one that seeks to shape behavior by either providing people with incentives or threatening to (or actually) punishing them. In law, the focus is on the efficacy of threatening to (or actually) punishing people for rule breaking behavior. This chapter argues for several basic propositions. First, people within our society share the belief that instrumental mechanisms are effective ways of motivating people—that punishment “works.” Second, empirical evidence consistently contradicts that belief. Third, there are alternative approaches that work better. Finally, the persistence of flawed beliefs despite contradictory evidence suggests that these beliefs are part of a culturally transmitted and supported ideology. This chapter concludes by discussing some of the reasons that this ideology persists.
D. J. Galligan
- Published in print:
- 1990
- Published Online:
- March 2012
- ISBN:
- 9780198256526
- eISBN:
- 9780191681653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256526.003.0002
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
Now that various senses of discretion have been considered and a standard case suggested, the next task is to consider the relationship between discretionary powers and ideas about law and legal ...
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Now that various senses of discretion have been considered and a standard case suggested, the next task is to consider the relationship between discretionary powers and ideas about law and legal systems. Such an undertaking is of interest in its own right, but it has a special importance because of the belief that discretionary powers are in some ways incompatible with notions of law. If legality connotes a system of authority centred around general and stable rules guiding citizens in their actions and enforceable in the courts, then discretionary powers may seem in various ways to be anathema to the very idea. This chapter examines that relationship. It begins by considering how discretionary powers fit into a descriptive account of law. It then moves to a particular conception of legal authority based around the ideals of the rule of law. This is referred to as the private law model. The chapter shows how discretionary powers depart from this model, and an attempt is made by considering the social background to explain the prevalence of discretion, and why it does not fit easily into the private law model. This leads to the formulation of an alternative public law model which takes fuller account of the significance of discretionary powers. Finally, different approaches to the development of legal principles regulating discretion are considered.Less
Now that various senses of discretion have been considered and a standard case suggested, the next task is to consider the relationship between discretionary powers and ideas about law and legal systems. Such an undertaking is of interest in its own right, but it has a special importance because of the belief that discretionary powers are in some ways incompatible with notions of law. If legality connotes a system of authority centred around general and stable rules guiding citizens in their actions and enforceable in the courts, then discretionary powers may seem in various ways to be anathema to the very idea. This chapter examines that relationship. It begins by considering how discretionary powers fit into a descriptive account of law. It then moves to a particular conception of legal authority based around the ideals of the rule of law. This is referred to as the private law model. The chapter shows how discretionary powers depart from this model, and an attempt is made by considering the social background to explain the prevalence of discretion, and why it does not fit easily into the private law model. This leads to the formulation of an alternative public law model which takes fuller account of the significance of discretionary powers. Finally, different approaches to the development of legal principles regulating discretion are considered.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.003.0002
- Subject:
- Law, Philosophy of Law
This introductory chapter develops the book's central problem—the problem of legal authority—and outlines the book's arguments in response to it. It introduces the apparent tension between morality ...
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This introductory chapter develops the book's central problem—the problem of legal authority—and outlines the book's arguments in response to it. It introduces the apparent tension between morality and law by juxtaposing John Adams's ideal of “a government of laws and not of men” against Aristotle's prescription that the “best man” rather than the “best law” should rule. As Aristotle recognized, laws inevitably have exceptions—situations in which the morally best thing to do is something other than what the law commands. Why should the “best men” not feel free to ignore the law in such circumstances? The chapter foreshadows the book's dispute-resolution framework for answering that question and situates the problem of legal authority in the context of several seemingly diverse fields of study: analytic legal philosophy, democratic political theory, theory of adjudication, and public-law theory.Less
This introductory chapter develops the book's central problem—the problem of legal authority—and outlines the book's arguments in response to it. It introduces the apparent tension between morality and law by juxtaposing John Adams's ideal of “a government of laws and not of men” against Aristotle's prescription that the “best man” rather than the “best law” should rule. As Aristotle recognized, laws inevitably have exceptions—situations in which the morally best thing to do is something other than what the law commands. Why should the “best men” not feel free to ignore the law in such circumstances? The chapter foreshadows the book's dispute-resolution framework for answering that question and situates the problem of legal authority in the context of several seemingly diverse fields of study: analytic legal philosophy, democratic political theory, theory of adjudication, and public-law theory.
Evan Fox-Decent
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199698318
- eISBN:
- 9780191732171
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199698318.003.0005
- Subject:
- Law, Constitutional and Administrative Law, Philosophy of Law
Chapter IV develops a distinction introduced in Chapter II between legal and political authority. Legal authority is the authority to make, interpret, administer and enforce law. This authority to ...
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Chapter IV develops a distinction introduced in Chapter II between legal and political authority. Legal authority is the authority to make, interpret, administer and enforce law. This authority to establish legal order (as opposed to some other kind of order) arises from the state-subject fiduciary relationship. Political authority presupposes legal authority, but has other elements as well, such as the authority to determine the content of ordinary law through legislation. Political authority also encompasses issues of political representation. States are more or less democratic depending on how these issues are resolved. I also set out the necessary and sufficient conditions that give rise to fiduciary relations, and explain how the state-subject relationship satisfies them. I conclude that legal authority rests on the state-subject fiduciary relationship and a presumption that the state must exercise power on the basis of public trust, whereas democratic political authority rests on consent.Less
Chapter IV develops a distinction introduced in Chapter II between legal and political authority. Legal authority is the authority to make, interpret, administer and enforce law. This authority to establish legal order (as opposed to some other kind of order) arises from the state-subject fiduciary relationship. Political authority presupposes legal authority, but has other elements as well, such as the authority to determine the content of ordinary law through legislation. Political authority also encompasses issues of political representation. States are more or less democratic depending on how these issues are resolved. I also set out the necessary and sufficient conditions that give rise to fiduciary relations, and explain how the state-subject relationship satisfies them. I conclude that legal authority rests on the state-subject fiduciary relationship and a presumption that the state must exercise power on the basis of public trust, whereas democratic political authority rests on consent.
JULES L. COLEMAN
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199264124
- eISBN:
- 9780191707698
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199264124.003.0010
- Subject:
- Law, Philosophy of Law
This chapter considers what Joseph Raz in particular finds objectionable in legal positivism. Raz believes that law’s claim to legitimate authority could only be true if it is possible to identify ...
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This chapter considers what Joseph Raz in particular finds objectionable in legal positivism. Raz believes that law’s claim to legitimate authority could only be true if it is possible to identify legal norms that their content by appealing to social source alone. It is argued that even if Raz is right about law’s conceptually necessary claim to authority, the sources thesis as a legal theory of validity does not follow from it. The chapter grants all of Raz’s claims about legal authority, but denies that they have all of the implications he claims they do.Less
This chapter considers what Joseph Raz in particular finds objectionable in legal positivism. Raz believes that law’s claim to legitimate authority could only be true if it is possible to identify legal norms that their content by appealing to social source alone. It is argued that even if Raz is right about law’s conceptually necessary claim to authority, the sources thesis as a legal theory of validity does not follow from it. The chapter grants all of Raz’s claims about legal authority, but denies that they have all of the implications he claims they do.
Mary Ellen O'Connell
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195368949
- eISBN:
- 9780199871100
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368949.003.0004
- Subject:
- Law, Public International Law
Responding to Henkin's compliance theory, Goldsmith and Posner asserted in 2005 that “rational choice” theory proves that few states ever truly “comply” with international law. What looks like ...
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Responding to Henkin's compliance theory, Goldsmith and Posner asserted in 2005 that “rational choice” theory proves that few states ever truly “comply” with international law. What looks like compliance is pursuit of “self” interest. They conclude that violations of international law, therefore, cannot be condemned as violations of law. To apply their theory, however, they make a series of implausible assumptions and fail to incorporate developments in behavioral economics or the insights of post-modernism. Both support the importance of such human impulses as altruism and belief. And it is these that actually support the claim that international law is law and that coercive means may be used to enforce it — as was always understood in natural law theory. Reviving natural law theory to explain the basis of international law's authority can best be done by incorporating process theory and retaining the centrality of positivism.Less
Responding to Henkin's compliance theory, Goldsmith and Posner asserted in 2005 that “rational choice” theory proves that few states ever truly “comply” with international law. What looks like compliance is pursuit of “self” interest. They conclude that violations of international law, therefore, cannot be condemned as violations of law. To apply their theory, however, they make a series of implausible assumptions and fail to incorporate developments in behavioral economics or the insights of post-modernism. Both support the importance of such human impulses as altruism and belief. And it is these that actually support the claim that international law is law and that coercive means may be used to enforce it — as was always understood in natural law theory. Reviving natural law theory to explain the basis of international law's authority can best be done by incorporating process theory and retaining the centrality of positivism.
Scott J. Shapiro
- Published in print:
- 2001
- Published Online:
- March 2012
- ISBN:
- 9780198299080
- eISBN:
- 9780191685606
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299080.003.0005
- Subject:
- Law, Philosophy of Law
This chapter examines the philosophical project of jurisprudence and the law's claim to legal authority in relation to Herbert Hart's The Concept of Law. It discusses Hart's argument that it was ...
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This chapter examines the philosophical project of jurisprudence and the law's claim to legal authority in relation to Herbert Hart's The Concept of Law. It discusses Hart's argument that it was impossible to account even for the most basic properties of the legal system by resorting to the concept of a habit. It analyses John Austin's theory of legal authority and suggests that Austin's cure was more than the disease. It also contends that Hart has successfully offered a solution to the chicken-and-egg problem that was so promising that it gave theorists reason to abandon the reductive positivistic paradigm and that Hart has showed that legal authority was dependent on rules without resorting to the natural law and without generating vicious circles or infinite regresses.Less
This chapter examines the philosophical project of jurisprudence and the law's claim to legal authority in relation to Herbert Hart's The Concept of Law. It discusses Hart's argument that it was impossible to account even for the most basic properties of the legal system by resorting to the concept of a habit. It analyses John Austin's theory of legal authority and suggests that Austin's cure was more than the disease. It also contends that Hart has successfully offered a solution to the chicken-and-egg problem that was so promising that it gave theorists reason to abandon the reductive positivistic paradigm and that Hart has showed that legal authority was dependent on rules without resorting to the natural law and without generating vicious circles or infinite regresses.
Elizabeth Mertz
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780195183108
- eISBN:
- 9780199870875
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195183108.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as “learning to think like a lawyer”. This process, which forces students to ...
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Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as “learning to think like a lawyer”. This process, which forces students to think and talk in radically new and toward different ways about conflicts, is directed by professors in the course of their lectures and examinations, and conducted via spoken and written language. This book delves into that legal language to reveal the complexities of how this process takes place. The book bases its linguistic study on tape recordings from first year Contracts courses in eight different law schools. The book discusses how these schools employ the Socratic method between teacher and student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead. This move away from moral frameworks is key, the book says, arguing that it represents an underlying world view at the core not just of law education, but for better or worse, of the entire U.S. legal system—which, while providing a useful source of legitimacy and a means to process conflict, fails to deal systematically with aspects of fairness and social justice. The latter part of the study shows how differences in race and gender makeup among law students and professors can subtly alter this process.Less
Anyone who has attended law school knows that it invokes an important intellectual transformation, frequently referred to as “learning to think like a lawyer”. This process, which forces students to think and talk in radically new and toward different ways about conflicts, is directed by professors in the course of their lectures and examinations, and conducted via spoken and written language. This book delves into that legal language to reveal the complexities of how this process takes place. The book bases its linguistic study on tape recordings from first year Contracts courses in eight different law schools. The book discusses how these schools employ the Socratic method between teacher and student, forcing the student to shift away from moral and emotional terms in thinking about conflict, toward frameworks of legal authority instead. This move away from moral frameworks is key, the book says, arguing that it represents an underlying world view at the core not just of law education, but for better or worse, of the entire U.S. legal system—which, while providing a useful source of legitimacy and a means to process conflict, fails to deal systematically with aspects of fairness and social justice. The latter part of the study shows how differences in race and gender makeup among law students and professors can subtly alter this process.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.003.0004
- Subject:
- Law, Philosophy of Law
This chapter begins articulating a dispute-resolution account of legal authority by hypothesizing a basic, bipartite dispute and developing, analytically, the essential features of a procedure ...
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This chapter begins articulating a dispute-resolution account of legal authority by hypothesizing a basic, bipartite dispute and developing, analytically, the essential features of a procedure capable of resolving it peacefully. It argues that a successful dispute-resolution procedure must be perceived by the disputants as reasonably accurate, and that the two essential ingredients of procedural accuracy are competence and impartiality. Disputants will have good reasons to agree to a procedure that is reasonably competent and impartial; they also, through the mechanism of constructive consent, will have good reasons to abide by the results of a reasonably competent and impartial procedure, even if they did not consent to it ex ante. These reasons for obedience can apply in multipartite social contexts as well, albeit in a more complex and contingent fashion. The value of reasonably accurate dispute resolution thus can support a general, non-absolutist account of legal authority, one that minimizes (although it does not entirely avoid) the flaws of rival accounts.Less
This chapter begins articulating a dispute-resolution account of legal authority by hypothesizing a basic, bipartite dispute and developing, analytically, the essential features of a procedure capable of resolving it peacefully. It argues that a successful dispute-resolution procedure must be perceived by the disputants as reasonably accurate, and that the two essential ingredients of procedural accuracy are competence and impartiality. Disputants will have good reasons to agree to a procedure that is reasonably competent and impartial; they also, through the mechanism of constructive consent, will have good reasons to abide by the results of a reasonably competent and impartial procedure, even if they did not consent to it ex ante. These reasons for obedience can apply in multipartite social contexts as well, albeit in a more complex and contingent fashion. The value of reasonably accurate dispute resolution thus can support a general, non-absolutist account of legal authority, one that minimizes (although it does not entirely avoid) the flaws of rival accounts.
Richard A. Goodman, Richard E. Hoffman, Wilfredo Lopez, Gene W. Matthews, Mark Rothstein, and Karen Foster (eds)
- Published in print:
- 2007
- Published Online:
- September 2009
- ISBN:
- 9780195301489
- eISBN:
- 9780199863822
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195301489.001.0001
- Subject:
- Public Health and Epidemiology, Public Health, Epidemiology
Continually changing health threats, technologies, science, and demographics require that public health professionals have an understanding of law sufficient to address complex new problems as they ...
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Continually changing health threats, technologies, science, and demographics require that public health professionals have an understanding of law sufficient to address complex new problems as they come into being. This book provides a review of the legal basis and authorities for the core elements of public health practice and solid discussions of existing and emerging high-priority areas where law and public health intersect. Each chapter is authored jointly by experts in law and public health. This second edition features three new chapters, with several others revised and updated. New chapters address such topics as the statutory bases for US public health systems and practice, the judiciary role in public health, and chronic disease prevention and control. The book begins with a section on the legal basis for public health practice, including foundations and structure of the law, discussions of the judiciary, ethics and practice of public health, and criminal law and international considerations. The second section focuses on core public health applications and the law, and includes chapters on legal counsel for public health practitioners, legal authorities for interventions in public health emergencies, and considerations for special populations. The third section discusses the law in controlling and preventing diseases, injuries, and disabilities. This section includes chapters on genomics, vaccinations, foodborne illness, STDs, reproductive health, chronic disease control, tobacco use, and occupational and environmental health.Less
Continually changing health threats, technologies, science, and demographics require that public health professionals have an understanding of law sufficient to address complex new problems as they come into being. This book provides a review of the legal basis and authorities for the core elements of public health practice and solid discussions of existing and emerging high-priority areas where law and public health intersect. Each chapter is authored jointly by experts in law and public health. This second edition features three new chapters, with several others revised and updated. New chapters address such topics as the statutory bases for US public health systems and practice, the judiciary role in public health, and chronic disease prevention and control. The book begins with a section on the legal basis for public health practice, including foundations and structure of the law, discussions of the judiciary, ethics and practice of public health, and criminal law and international considerations. The second section focuses on core public health applications and the law, and includes chapters on legal counsel for public health practitioners, legal authorities for interventions in public health emergencies, and considerations for special populations. The third section discusses the law in controlling and preventing diseases, injuries, and disabilities. This section includes chapters on genomics, vaccinations, foodborne illness, STDs, reproductive health, chronic disease control, tobacco use, and occupational and environmental health.
Jules Coleman
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267904
- eISBN:
- 9780191683404
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267904.003.0010
- Subject:
- Law, Philosophy of Law
This chapter attempts to revisit the relationship between incorporationism and the rule of recognition. In doing so, the chapter reviews various accounts of normative force or authority and outlines ...
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This chapter attempts to revisit the relationship between incorporationism and the rule of recognition. In doing so, the chapter reviews various accounts of normative force or authority and outlines an alternative account of the rule of recognition in such a way that it emphasizes the fact that the rule of recognition is a convergent social practice among officials. The chapter also offers an outline of the general account of the authority of rules subordinate to the rule of recognition. Finally, the chapter also suggests an argument for imposing constraints on legal authority that operates on the claim that legal authority must respect the norms of autonomy and equality implicit in the social practice of giving reasons. Legal positivism is described in the chapter as having two basic tenets: the rule of recognition and the separability thesis.Less
This chapter attempts to revisit the relationship between incorporationism and the rule of recognition. In doing so, the chapter reviews various accounts of normative force or authority and outlines an alternative account of the rule of recognition in such a way that it emphasizes the fact that the rule of recognition is a convergent social practice among officials. The chapter also offers an outline of the general account of the authority of rules subordinate to the rule of recognition. Finally, the chapter also suggests an argument for imposing constraints on legal authority that operates on the claim that legal authority must respect the norms of autonomy and equality implicit in the social practice of giving reasons. Legal positivism is described in the chapter as having two basic tenets: the rule of recognition and the separability thesis.
Andrei Marmor
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780198268970
- eISBN:
- 9780191713187
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268970.003.0005
- Subject:
- Law, Philosophy of Law
This chapter considers the essential relationship between authority and authorship and suggests that there is no authority without authorship. It argues that legal authority must be attributable to ...
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This chapter considers the essential relationship between authority and authorship and suggests that there is no authority without authorship. It argues that legal authority must be attributable to persons who can form a judgement on how others ought to behave and communicate such a judgement to their putative subjects. This personal conception of authority has been recently criticized by Jeremy Waldron, and earlier by H. L. A. Hart in his discussion of John Austin's jurisprudence. The chapter argues that Waldron's impersonal conception of authority fails because it ignores the crucial distinction between theoretical authority and practical authority. Hart's criticisms of Austin's personal conception of authority, however, are defensible only to the extent that they target Austin's rather crude definitions of sovereignty. The chapter also examines the role of legislative intent in the interpretation of statutes.Less
This chapter considers the essential relationship between authority and authorship and suggests that there is no authority without authorship. It argues that legal authority must be attributable to persons who can form a judgement on how others ought to behave and communicate such a judgement to their putative subjects. This personal conception of authority has been recently criticized by Jeremy Waldron, and earlier by H. L. A. Hart in his discussion of John Austin's jurisprudence. The chapter argues that Waldron's impersonal conception of authority fails because it ignores the crucial distinction between theoretical authority and practical authority. Hart's criticisms of Austin's personal conception of authority, however, are defensible only to the extent that they target Austin's rather crude definitions of sovereignty. The chapter also examines the role of legislative intent in the interpretation of statutes.
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/9780199580088.003.0010
- Subject:
- Law, Philosophy of Law
This chapter makes a fundamental examination of Weber's method and results in their bearing on the understanding of law and legal authority. It takes off from a critique of Anthony Kronman's 1983 ...
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This chapter makes a fundamental examination of Weber's method and results in their bearing on the understanding of law and legal authority. It takes off from a critique of Anthony Kronman's 1983 book on Weber as a sociologist of law (and economy, authority, and religion), but shows with textual detail why Weber concluded that the ideal-type or central form of social authority is legal-rational authority, and the central form of that, in turn, is the value-rationality encapsulated in natural law theory. Weber's arguments for denying the rationality or objectivity of value judgments are critiqued, as well as Kronman's attempted supplementation of them.Less
This chapter makes a fundamental examination of Weber's method and results in their bearing on the understanding of law and legal authority. It takes off from a critique of Anthony Kronman's 1983 book on Weber as a sociologist of law (and economy, authority, and religion), but shows with textual detail why Weber concluded that the ideal-type or central form of social authority is legal-rational authority, and the central form of that, in turn, is the value-rationality encapsulated in natural law theory. Weber's arguments for denying the rationality or objectivity of value judgments are critiqued, as well as Kronman's attempted supplementation of them.
