Neil Duxbury
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264910
- eISBN:
- 9780191682865
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264910.003.0002
- Subject:
- Law, Philosophy of Law
This chapter describes the second period of American legal history, the period of legal formalism. It specifically provides a discussion of late nineteenth and early twentieth-century legal formalism ...
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This chapter describes the second period of American legal history, the period of legal formalism. It specifically provides a discussion of late nineteenth and early twentieth-century legal formalism in the United States. The thesis of this chapter is that the commonly accepted idea of a ‘revolt against formalism’ in late nineteenth-century American intellectual life is, certainly so far as jurisprudence is concerned, a myth. It explores what, in the context of late nineteenth and early twentieth-century American jurisprudence, legal formalism might be taken to mean. It also addresses how, before the advent of legal realism, American jurisprudence began, if only hesitantly, to question the premisses of formalist legal thinking. It is shown that the great forerunners of American legal realism, Holmes and Pound, were not committed anti-formalists.Less
This chapter describes the second period of American legal history, the period of legal formalism. It specifically provides a discussion of late nineteenth and early twentieth-century legal formalism in the United States. The thesis of this chapter is that the commonly accepted idea of a ‘revolt against formalism’ in late nineteenth-century American intellectual life is, certainly so far as jurisprudence is concerned, a myth. It explores what, in the context of late nineteenth and early twentieth-century American jurisprudence, legal formalism might be taken to mean. It also addresses how, before the advent of legal realism, American jurisprudence began, if only hesitantly, to question the premisses of formalist legal thinking. It is shown that the great forerunners of American legal realism, Holmes and Pound, were not committed anti-formalists.
Menachem Mautner
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199600564
- eISBN:
- 9780191729188
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600564.003.0005
- Subject:
- Law, Philosophy of Law
This chapter discusses two significant changes discernible in the jurisprudence of Israel's Supreme Court in the 1980s and 1990s. First, the canonical reasoning in the Court's opinions from the ...
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This chapter discusses two significant changes discernible in the jurisprudence of Israel's Supreme Court in the 1980s and 1990s. First, the canonical reasoning in the Court's opinions from the establishment of the State of Israel in 1948 until the 1980s was formalistic. Legal formalism enabled the Court to downplay the cultural gap that prevailed at the time between its liberal values and the collectivist values of the country's hegemonic culture. In the 1980s and 1990s, however, a new, value-laden jurisprudence, which exposes the normative meaning and distributive implications of the law, gained ascendancy in the Court's opinions. The second change was a shift in the Court's view of itself from a professional institution whose role is to settle disputes, to a view of itself as a political institution that participates in determining the values that prevail in the country and the distribution of its material resources.Less
This chapter discusses two significant changes discernible in the jurisprudence of Israel's Supreme Court in the 1980s and 1990s. First, the canonical reasoning in the Court's opinions from the establishment of the State of Israel in 1948 until the 1980s was formalistic. Legal formalism enabled the Court to downplay the cultural gap that prevailed at the time between its liberal values and the collectivist values of the country's hegemonic culture. In the 1980s and 1990s, however, a new, value-laden jurisprudence, which exposes the normative meaning and distributive implications of the law, gained ascendancy in the Court's opinions. The second change was a shift in the Court's view of itself from a professional institution whose role is to settle disputes, to a view of itself as a political institution that participates in determining the values that prevail in the country and the distribution of its material resources.
BRIAN LEITER
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199206490
- eISBN:
- 9780191715020
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206490.003.0005
- Subject:
- Law, Philosophy of Law
This chapter shifts the focus from the philosophical response to Realism to that within academic law. It uses Neil Duxbury's interesting, if sometimes quite misleading, book Patterns of American ...
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This chapter shifts the focus from the philosophical response to Realism to that within academic law. It uses Neil Duxbury's interesting, if sometimes quite misleading, book Patterns of American Jurisprudence to explore the nature of what is often called legal formalism (which the Realists rejected), the Critical Legal Studies misunderstanding of Realism, the relationship between economic analysis of law and Realism, and the nature of jurisprudential inquiry itself.Less
This chapter shifts the focus from the philosophical response to Realism to that within academic law. It uses Neil Duxbury's interesting, if sometimes quite misleading, book Patterns of American Jurisprudence to explore the nature of what is often called legal formalism (which the Realists rejected), the Critical Legal Studies misunderstanding of Realism, the relationship between economic analysis of law and Realism, and the nature of jurisprudential inquiry itself.
Neil Duxbury
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264910
- eISBN:
- 9780191682865
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264910.001.0001
- Subject:
- Law, Philosophy of Law
This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The book argues that it is a ...
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This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The book argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, it demonstrates that American jurisprudence has evolved as a collection of themes which reflect broader American intellectual and cultural concerns.Less
This unique study offers a comprehensive analysis of American jurisprudence from its emergence in the later stages of the nineteenth century through to the present day. The book argues that it is a mistake to view American jurisprudence as a collection of movements and schools which have emerged in opposition to each other. By offering a highly original analysis of legal formalism, legal realism, policy science, process jurisprudence, law and economics, and critical legal studies, it demonstrates that American jurisprudence has evolved as a collection of themes which reflect broader American intellectual and cultural concerns.
Ernest J. Weinrib
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199665815
- eISBN:
- 9780191748622
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199665815.003.0002
- Subject:
- Law, Philosophy of Law, Law of Obligations
Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together ...
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Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together the three ideas of character, kind, and unity. Applied to private law, form refers to a mode of understanding that integrates the characteristic concepts, the distinctiveness, and the coherence the plaintiff-defendant relationship. Among these, coherence is paramount. Using loss-spreading as an illustration, this chapter elucidates the nature of coherence, its importance to private law as a justificatory enterprise, and its role in rendering private law intelligible. It concludes by examining the deficiencies from the formalist standpoint of some contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried's theory of contract as promise, and George Fletcher's theory of excuses).Less
Formalism is the theory appropriate to understanding private law from within. Legal Formalism makes the notion of form central to the understanding of juridical relationships. Form brings together the three ideas of character, kind, and unity. Applied to private law, form refers to a mode of understanding that integrates the characteristic concepts, the distinctiveness, and the coherence the plaintiff-defendant relationship. Among these, coherence is paramount. Using loss-spreading as an illustration, this chapter elucidates the nature of coherence, its importance to private law as a justificatory enterprise, and its role in rendering private law intelligible. It concludes by examining the deficiencies from the formalist standpoint of some contemporary theories, both instrumental and non-instrumental (the economic analysis of law, Charles Fried's theory of contract as promise, and George Fletcher's theory of excuses).
Mark Kelman
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199755608
- eISBN:
- 9780199895236
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199755608.003.0009
- Subject:
- Law, Philosophy of Law
While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this ...
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While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this chapter argues that it is instructive to see Langdell’s beliefs as homologous with F&F conceptions, to see some parallels between Holmes’ thought and H&B theory, and to see MM theory and “fact-type” Realism as related. Langdell’s arguments for base level rules resonates in the F&F idea that cognition is lexical; more subtly, the principles that he believes can be deduced by careful study of existing case law are not natural or intuitive but otherwise strongly resemble the basic cognitive tools in the F&F adaptive toolbox. Holmes believed that our problem-solving “intuitions” developed historically and collectively to a greater extent than they derived from individually adaptive cognitive algorithms. But like H&B theorists who describe the relationship between System One and System Two thinking, Holmes believed that such intuitions exist to meet functional ends, and that following them will generally do so, but that we have the capacity to override them.Less
While neither Langdell nor Holmes self-consciously addressed the nature of human cognition in defending, respectively, the Classical synthesis about law or a more pragmatic Realist approach, this chapter argues that it is instructive to see Langdell’s beliefs as homologous with F&F conceptions, to see some parallels between Holmes’ thought and H&B theory, and to see MM theory and “fact-type” Realism as related. Langdell’s arguments for base level rules resonates in the F&F idea that cognition is lexical; more subtly, the principles that he believes can be deduced by careful study of existing case law are not natural or intuitive but otherwise strongly resemble the basic cognitive tools in the F&F adaptive toolbox. Holmes believed that our problem-solving “intuitions” developed historically and collectively to a greater extent than they derived from individually adaptive cognitive algorithms. But like H&B theorists who describe the relationship between System One and System Two thinking, Holmes believed that such intuitions exist to meet functional ends, and that following them will generally do so, but that we have the capacity to override 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/9780195387223.003.0006
- Subject:
- Law, Philosophy of Law
This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal ...
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This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal rules can help avoid and resolve disputes, their inevitable indeterminacy means that, despite the aspirations of legal formalists, procedures of adjudication must be developed to apply them in particular circumstances. These adjudicative procedures themselves must be reasonably competent and impartial in order to possess authority. The participation that characterizes the “adversary system” of adjudication, and the interest representation that characterizes the common law, both contribute to the competence and impartiality of adjudication and thus to its authoritativeness. Adjudication derives additional authority when it seeks to interpret democratic statutes by implementing their linguistic intentions and their justifications.Less
This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal rules can help avoid and resolve disputes, their inevitable indeterminacy means that, despite the aspirations of legal formalists, procedures of adjudication must be developed to apply them in particular circumstances. These adjudicative procedures themselves must be reasonably competent and impartial in order to possess authority. The participation that characterizes the “adversary system” of adjudication, and the interest representation that characterizes the common law, both contribute to the competence and impartiality of adjudication and thus to its authoritativeness. Adjudication derives additional authority when it seeks to interpret democratic statutes by implementing their linguistic intentions and their justifications.
Menachem Mautner
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199600564
- eISBN:
- 9780191729188
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600564.001.0001
- Subject:
- Law, Philosophy of Law
Within a short span of time in the course of the 1980s, the Supreme Court of Israel effected far-reaching changes in its legal doctrine and in the way it perceives its role among the state's ...
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Within a short span of time in the course of the 1980s, the Supreme Court of Israel effected far-reaching changes in its legal doctrine and in the way it perceives its role among the state's branches. This book locates those changes in the context of the great historical process that took shape in Israel in the second half of the 1970s: the decline of the political, social, and cultural hegemony of the labor movement, and the renewal of the struggle over the future orientation of the country's culture. Two social groups have confronted each other at the heart of this struggle: a secular group that is aiming to strengthen Israel's ties to Western liberalism, and a religious group intent on associating Israel's culture with traditional Jewish heritage and the Halakhah. The Supreme Court — the institution most closely identified with liberalism since the establishment of the state — collaborated with the former group in its struggle against the latter. The story of the Court serves as the axis of another two stories. The first deals with the struggle over the cultural identity of the Jewish people throughout the course of modernity. The second is the story of the struggle over the cultural identity of Israeli law, which took place throughout the 20th century. In addition to the divide between secular and religious Jews, there is a national divide in Israel between Jews and Arabs. These two divides are interrelated in complex ways which shape the unique traits of Israel's multicultural condition. The book ends with a few suggestions as to how, given this condition, Israel's regime, political culture and law should be constituted in the coming decades. The suggestions borrow from the discourses of liberalism, multiculturalism, and republicanism.Less
Within a short span of time in the course of the 1980s, the Supreme Court of Israel effected far-reaching changes in its legal doctrine and in the way it perceives its role among the state's branches. This book locates those changes in the context of the great historical process that took shape in Israel in the second half of the 1970s: the decline of the political, social, and cultural hegemony of the labor movement, and the renewal of the struggle over the future orientation of the country's culture. Two social groups have confronted each other at the heart of this struggle: a secular group that is aiming to strengthen Israel's ties to Western liberalism, and a religious group intent on associating Israel's culture with traditional Jewish heritage and the Halakhah. The Supreme Court — the institution most closely identified with liberalism since the establishment of the state — collaborated with the former group in its struggle against the latter. The story of the Court serves as the axis of another two stories. The first deals with the struggle over the cultural identity of the Jewish people throughout the course of modernity. The second is the story of the struggle over the cultural identity of Israeli law, which took place throughout the 20th century. In addition to the divide between secular and religious Jews, there is a national divide in Israel between Jews and Arabs. These two divides are interrelated in complex ways which shape the unique traits of Israel's multicultural condition. The book ends with a few suggestions as to how, given this condition, Israel's regime, political culture and law should be constituted in the coming decades. The suggestions borrow from the discourses of liberalism, multiculturalism, and republicanism.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804750301
- eISBN:
- 9780804779418
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804750301.003.0011
- Subject:
- Law, Legal History
This chapter identifies three shapes of international legal consciousness: international law as abstract right; international law as civil society; and an organic world history. It begins by ...
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This chapter identifies three shapes of international legal consciousness: international law as abstract right; international law as civil society; and an organic world history. It begins by privileging Kant's legal formalism and Hegel's critique of the formalism. In the first shape of international legal consciousness—international abstract right—the state is not aware of its separation from shared international norms. In the second shape—the international civil society—such a monadic state recognizes that it is dependent upon other states to fulfill its arbitrary will. The treaty, like a contract, fulfills the state's arbitrary will. But still further external obstacles constrain state action in international civil society. This takes us to the third shape of international legal consciousness—world history. Shared peremptory norms void state action, even when that action is institutionalized in a treaty. Such peremptory norms are identified. Hegel leaves us with the possibility that a state-centric international legal order may well dissolve, just as did the family, when the emergent peremptory universal norms displace international abstract right and civil society.Less
This chapter identifies three shapes of international legal consciousness: international law as abstract right; international law as civil society; and an organic world history. It begins by privileging Kant's legal formalism and Hegel's critique of the formalism. In the first shape of international legal consciousness—international abstract right—the state is not aware of its separation from shared international norms. In the second shape—the international civil society—such a monadic state recognizes that it is dependent upon other states to fulfill its arbitrary will. The treaty, like a contract, fulfills the state's arbitrary will. But still further external obstacles constrain state action in international civil society. This takes us to the third shape of international legal consciousness—world history. Shared peremptory norms void state action, even when that action is institutionalized in a treaty. Such peremptory norms are identified. Hegel leaves us with the possibility that a state-centric international legal order may well dissolve, just as did the family, when the emergent peremptory universal norms displace international abstract right and civil society.
Kwai Hang Ng
- Published in print:
- 2009
- Published Online:
- June 2013
- ISBN:
- 9780804761642
- eISBN:
- 9780804772358
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804761642.001.0001
- Subject:
- Sociology, Politics, Social Movements and Social Change
Hong Kong is one of the very few places in the world where the common law can be practiced in a language other than English. Introduced into the courtroom over a decade ago, Cantonese has ...
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Hong Kong is one of the very few places in the world where the common law can be practiced in a language other than English. Introduced into the courtroom over a decade ago, Cantonese has significantly altered the everyday working of the common law in China's most Westernized city. This book explores how English and Cantonese respectively reinforce and undermine the practice of legal formalism. This first-ever ethnographic study of Hong Kong's unique legal system in the midst of social and political transition, this book provides important insights into the social nature of language and the work of institutions. The author contends that the dilemma of legal bilingualism in Hong Kong is emblematic of the inherent tensions of postcolonial Hong Kong. Through the legal dramas presented in the book, readers will get a fresh look at the former British colony that is now searching for its identity within a powerful China.Less
Hong Kong is one of the very few places in the world where the common law can be practiced in a language other than English. Introduced into the courtroom over a decade ago, Cantonese has significantly altered the everyday working of the common law in China's most Westernized city. This book explores how English and Cantonese respectively reinforce and undermine the practice of legal formalism. This first-ever ethnographic study of Hong Kong's unique legal system in the midst of social and political transition, this book provides important insights into the social nature of language and the work of institutions. The author contends that the dilemma of legal bilingualism in Hong Kong is emblematic of the inherent tensions of postcolonial Hong Kong. Through the legal dramas presented in the book, readers will get a fresh look at the former British colony that is now searching for its identity within a powerful China.
Alan Brudner
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199592807
- eISBN:
- 9780191767944
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592807.003.0001
- Subject:
- Law, Constitutional and Administrative Law, Legal History
The book’s thesis is situated with respect to functionalist theories that reduce transactional law to public law and to legal formalism, which reduces transactional law to private law. The argument ...
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The book’s thesis is situated with respect to functionalist theories that reduce transactional law to public law and to legal formalism, which reduces transactional law to private law. The argument is made that the economic interpretation of transactional law violates basic canons of interpretation and that formalism’s conceptual argument for private law’s unqualified autonomy rests on a false connection between the idea of a transaction and corrective justice. Only a normative argument can vindicate private’s law’s autonomy, and the outline of such an argument is sketched. The book criticizes the legal formalist’s dichotomy between private and public law as well as its elevation of form above substance. Transactional law, it is argued, is ordered to the end-status of the human individual, and that end requires that private law be complemented by public law where private law would become the instrument of another’s interest. Thus transactional law is a unity of private and public law wherein private law’s autonomy is qualified but not destroyed.Less
The book’s thesis is situated with respect to functionalist theories that reduce transactional law to public law and to legal formalism, which reduces transactional law to private law. The argument is made that the economic interpretation of transactional law violates basic canons of interpretation and that formalism’s conceptual argument for private law’s unqualified autonomy rests on a false connection between the idea of a transaction and corrective justice. Only a normative argument can vindicate private’s law’s autonomy, and the outline of such an argument is sketched. The book criticizes the legal formalist’s dichotomy between private and public law as well as its elevation of form above substance. Transactional law, it is argued, is ordered to the end-status of the human individual, and that end requires that private law be complemented by public law where private law would become the instrument of another’s interest. Thus transactional law is a unity of private and public law wherein private law’s autonomy is qualified but not destroyed.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804750301
- eISBN:
- 9780804779418
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804750301.003.0012
- Subject:
- Law, Legal History
This concluding chapter raises the following questions that draw from Hegel's philosophy of the legitimacy of a modern legal order: Does Hegel's legal philosophy escape from legal formalism? Is the ...
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This concluding chapter raises the following questions that draw from Hegel's philosophy of the legitimacy of a modern legal order: Does Hegel's legal philosophy escape from legal formalism? Is the legal order legitimate independent of the arbitrary will? It then questions whether Hegel's legal philosophy is so presuppositionless as he claims for it. Finally, it discusses the paradox of Hegel's legal philosophy.Less
This concluding chapter raises the following questions that draw from Hegel's philosophy of the legitimacy of a modern legal order: Does Hegel's legal philosophy escape from legal formalism? Is the legal order legitimate independent of the arbitrary will? It then questions whether Hegel's legal philosophy is so presuppositionless as he claims for it. Finally, it discusses the paradox of Hegel's legal philosophy.
Eric Heinze
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0011
- Subject:
- Law, Human Rights and Immigration
All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been ...
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All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.Less
All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.
Nathan Spannaus
- Published in print:
- 2019
- Published Online:
- August 2019
- ISBN:
- 9780190251789
- eISBN:
- 9780190251802
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190251789.003.0004
- Subject:
- Religion, Islam, Religion and Society
Ijtihad is a major aspect of Qursawi’s reformism. He understands it as the exercise of Islamic legal interpretation, forming a necessary link between scripture and the daily life of the community. ...
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Ijtihad is a major aspect of Qursawi’s reformism. He understands it as the exercise of Islamic legal interpretation, forming a necessary link between scripture and the daily life of the community. But he argues that the structures of taqlid, especially rigid ranks for fuqaha within the madhhab, have severed that link. He states that ijtihad must be carried out, and he takes the radical position that it is an obligation upon all Muslims. Everyone should learn methods of interpretation to verify scholars’ pronouncements and determine correct action. In this, he relies on conventional Hanafi jurisprudence, if broadened in its scope. Although at odds with his contemporaries, who insisted upon taqlid (in some cases to an extreme degree) this chapter argues that this radical stance is warranted by the changes to the ulama under Russian rule, and obliging legal interpretation upon everyone promotes adherence to sharia in an environment where it had been undermined.Less
Ijtihad is a major aspect of Qursawi’s reformism. He understands it as the exercise of Islamic legal interpretation, forming a necessary link between scripture and the daily life of the community. But he argues that the structures of taqlid, especially rigid ranks for fuqaha within the madhhab, have severed that link. He states that ijtihad must be carried out, and he takes the radical position that it is an obligation upon all Muslims. Everyone should learn methods of interpretation to verify scholars’ pronouncements and determine correct action. In this, he relies on conventional Hanafi jurisprudence, if broadened in its scope. Although at odds with his contemporaries, who insisted upon taqlid (in some cases to an extreme degree) this chapter argues that this radical stance is warranted by the changes to the ulama under Russian rule, and obliging legal interpretation upon everyone promotes adherence to sharia in an environment where it had been undermined.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804750301
- eISBN:
- 9780804779418
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804750301.003.0006
- Subject:
- Law, Legal History
This chapter outlines Hegel's critique of legal formalism, which generates his later excursus into ethicality and the shapes of ethical ethê. It begins by returning to Hegel's phenomenological ...
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This chapter outlines Hegel's critique of legal formalism, which generates his later excursus into ethicality and the shapes of ethical ethê. It begins by returning to Hegel's phenomenological description of how an individual thinks. It then turns to his description of the moral content of such thinking. Hegel privileges in this regard intentions and the personal knowledge of circumstances in one's acts. Hegel finds both elements of intentionality problematic because the arbitrariness of the will displaces ethicality in both traditions.Less
This chapter outlines Hegel's critique of legal formalism, which generates his later excursus into ethicality and the shapes of ethical ethê. It begins by returning to Hegel's phenomenological description of how an individual thinks. It then turns to his description of the moral content of such thinking. Hegel privileges in this regard intentions and the personal knowledge of circumstances in one's acts. Hegel finds both elements of intentionality problematic because the arbitrariness of the will displaces ethicality in both traditions.
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804750301
- eISBN:
- 9780804779418
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804750301.003.0009
- Subject:
- Law, Legal History
This chapter presents Hegel's discussion of the ethos of civil society. Hegel claims that civil society is not any ethos. It is an ethical ethos. In order to understand why civil society exhibits ...
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This chapter presents Hegel's discussion of the ethos of civil society. Hegel claims that civil society is not any ethos. It is an ethical ethos. In order to understand why civil society exhibits ethicality, we need to gain a grasp of the identity of law in civil society. What is the character of civil society? Second, how does civil society manifest ethicality? Third, how are intermediate organizations and the external state exhibited in civil society? Fourth, how is it legitimate? And finally, how does legal reasoning become mere formalism that is reified from the subjective freedom? This chapter addresses each of these issues in turn. Once the philosopher appreciates, however, how the civil society replicates the legal formalism described in Chapter 5, the philosopher will journey into the final domestic shape of domestic legal consciousness: the organic legal order.Less
This chapter presents Hegel's discussion of the ethos of civil society. Hegel claims that civil society is not any ethos. It is an ethical ethos. In order to understand why civil society exhibits ethicality, we need to gain a grasp of the identity of law in civil society. What is the character of civil society? Second, how does civil society manifest ethicality? Third, how are intermediate organizations and the external state exhibited in civil society? Fourth, how is it legitimate? And finally, how does legal reasoning become mere formalism that is reified from the subjective freedom? This chapter addresses each of these issues in turn. Once the philosopher appreciates, however, how the civil society replicates the legal formalism described in Chapter 5, the philosopher will journey into the final domestic shape of domestic legal consciousness: the organic legal order.
Dana D. Nelson
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780823268382
- eISBN:
- 9780823272525
- Item type:
- chapter
- Publisher:
- Fordham University Press
- DOI:
- 10.5422/fordham/9780823268382.003.0006
- Subject:
- History, American History: early to 18th Century
This chapter takes up Cooper’s Littlepage trilogy, which helps us track historically the substantive, if diminishing threat that the power of commons democracy posed to the growing economic power of ...
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This chapter takes up Cooper’s Littlepage trilogy, which helps us track historically the substantive, if diminishing threat that the power of commons democracy posed to the growing economic power of liberalism in the early United States. These three long-neglected novels assume a wide familiarity with the social and political as well as economic entailments of commons culture in the late colonies and early republic, and they trace the accommodations of commons culture to the expanding imperatives of market capitalism in the mid-nineteenth century. The novels importantly help us to see how the universal suffrage that seems like a democratic advance covers over the more complicated capitalist constraining and harnessing of “democracy” in this period.Less
This chapter takes up Cooper’s Littlepage trilogy, which helps us track historically the substantive, if diminishing threat that the power of commons democracy posed to the growing economic power of liberalism in the early United States. These three long-neglected novels assume a wide familiarity with the social and political as well as economic entailments of commons culture in the late colonies and early republic, and they trace the accommodations of commons culture to the expanding imperatives of market capitalism in the mid-nineteenth century. The novels importantly help us to see how the universal suffrage that seems like a democratic advance covers over the more complicated capitalist constraining and harnessing of “democracy” in this period.
Gábor T. Rittersporn
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199655663
- eISBN:
- 9780191757518
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199655663.003.0011
- Subject:
- History, Political History, Social History
Soviet criminal policy of the mid-1930s shows that the Great Terror of 1937–8 was not a minutely planned operation. It was part of a penal strategy that oscillated between attempts to institute legal ...
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Soviet criminal policy of the mid-1930s shows that the Great Terror of 1937–8 was not a minutely planned operation. It was part of a penal strategy that oscillated between attempts to institute legal formalism and the recourse to mass repression. On the eve of the Terror, proponents of judicial formalism consolidated their positions. Still, they had no difficulty in switching over to the hard line. Soviet-type legalism was not incompatible with arbitrary policies and erratic use of force. After the Terror, legal formalism seemed to get the upper hand. But conflicts between the political police and the judiciary were won by the NKVD even though the purge was hardly a success. The practice of mass purges was nevertheless abandoned. A new understanding of threats to the system's stability gave new importance to the judiciary.Less
Soviet criminal policy of the mid-1930s shows that the Great Terror of 1937–8 was not a minutely planned operation. It was part of a penal strategy that oscillated between attempts to institute legal formalism and the recourse to mass repression. On the eve of the Terror, proponents of judicial formalism consolidated their positions. Still, they had no difficulty in switching over to the hard line. Soviet-type legalism was not incompatible with arbitrary policies and erratic use of force. After the Terror, legal formalism seemed to get the upper hand. But conflicts between the political police and the judiciary were won by the NKVD even though the purge was hardly a success. The practice of mass purges was nevertheless abandoned. A new understanding of threats to the system's stability gave new importance to the judiciary.
Aryeh Amihay
- Published in print:
- 2017
- Published Online:
- December 2016
- ISBN:
- 9780190631017
- eISBN:
- 9780190631048
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780190631017.003.0002
- Subject:
- Religion, Biblical Studies, Judaism
This chapter surveys the debate over nominalism and realism in the Judean Desert Scrolls and rabbinic law, focusing on the significance of terminology. It supports Daniel Schwartz’s view of “realism” ...
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This chapter surveys the debate over nominalism and realism in the Judean Desert Scrolls and rabbinic law, focusing on the significance of terminology. It supports Daniel Schwartz’s view of “realism” in Essene law, but argues for the use of the term “legal essentialism” instead. It describes the meaning of “legal realism” in legal theory and jurisdiction, explaining the pitfalls of erroneous terms. It then proceeds to describe how the opposite view is best described as “legal formalism,” with various examples from rabbinic law. Upon conclusion, it distinguishes “essentialism” as a legal term and “determinism” as a theological term, but posits the combined term “essentialism-determinism” as the foundational worldview of the Essenes.Less
This chapter surveys the debate over nominalism and realism in the Judean Desert Scrolls and rabbinic law, focusing on the significance of terminology. It supports Daniel Schwartz’s view of “realism” in Essene law, but argues for the use of the term “legal essentialism” instead. It describes the meaning of “legal realism” in legal theory and jurisdiction, explaining the pitfalls of erroneous terms. It then proceeds to describe how the opposite view is best described as “legal formalism,” with various examples from rabbinic law. Upon conclusion, it distinguishes “essentialism” as a legal term and “determinism” as a theological term, but posits the combined term “essentialism-determinism” as the foundational worldview of the Essenes.
Alan Brudner
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199592807
- eISBN:
- 9780191767944
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592807.003.0003
- Subject:
- Law, Constitutional and Administrative Law, Legal History
This chapter prepares the ground for a vindication of private law’s autonomy through Hegel’s legal philosophy by arguing that, with the exception of the law enjoining trespass to the person, private ...
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This chapter prepares the ground for a vindication of private law’s autonomy through Hegel’s legal philosophy by arguing that, with the exception of the law enjoining trespass to the person, private law vanishes in Kant’s legal philosophy. Against the new legal formalism, the chapter argues that there is no possibility for an autonomous private law (or corrective justice) in Kantian Right and that there is indeed a logical progression from Kantian Right to the very functionalism that the new legal formalism decries. This is shown by pointing to the instability of private property in Kantian Right—to its immersion in the public distributive justice implemented by the legislature and administered to a limited extent by courts. The chapter concludes that Kantian Right cannot be private law’s normative theory because, by virtue of its locating right solely in the general will, Kantian Right is normatively hostile to private law.Less
This chapter prepares the ground for a vindication of private law’s autonomy through Hegel’s legal philosophy by arguing that, with the exception of the law enjoining trespass to the person, private law vanishes in Kant’s legal philosophy. Against the new legal formalism, the chapter argues that there is no possibility for an autonomous private law (or corrective justice) in Kantian Right and that there is indeed a logical progression from Kantian Right to the very functionalism that the new legal formalism decries. This is shown by pointing to the instability of private property in Kantian Right—to its immersion in the public distributive justice implemented by the legislature and administered to a limited extent by courts. The chapter concludes that Kantian Right cannot be private law’s normative theory because, by virtue of its locating right solely in the general will, Kantian Right is normatively hostile to private law.
