Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.001.0001
- Subject:
- Law, Philosophy of Law, Legal History
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of ...
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This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.Less
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.
Michael Freeman and Ross Harrison (eds)
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199237159
- eISBN:
- 9780191705427
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199237159.001.0001
- Subject:
- Law, Philosophy of Law
Current Legal Issues is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another ...
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Current Legal Issues is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloqium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. Law and Philosophy, the tenth volume in the Current Legal Issues series, contains a broad range of essays by scholars interested in the interactions between law and philosophy. The collection displays ways in which philosophy can be applied to legal questions as well as the interactions between them. The two central themes are the lively and contentious contemporary debate about the nature of the law and the always relevant normative debate about what the state should do and the interactions between State, the citizen, and the law.Less
Current Legal Issues is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloqium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within legal theory and practice. Law and Philosophy, the tenth volume in the Current Legal Issues series, contains a broad range of essays by scholars interested in the interactions between law and philosophy. The collection displays ways in which philosophy can be applied to legal questions as well as the interactions between them. The two central themes are the lively and contentious contemporary debate about the nature of the law and the always relevant normative debate about what the state should do and the interactions between State, the citizen, and the law.
A. W. Brian Simpson
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199693320
- eISBN:
- 9780191731983
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199693320.001.0001
- Subject:
- Law, Philosophy of Law
HLA Hart's The Concept of Law is one of the most influential works of philosophy of the 20th century, redefining the field of legal philosophy and introducing generations of students to philosophical ...
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HLA Hart's The Concept of Law is one of the most influential works of philosophy of the 20th century, redefining the field of legal philosophy and introducing generations of students to philosophical reflection on the nature of law. Since its publication in 1961 an industry of academic research and debate has grown up around the book, disputing, refining, and developing Hart's work. Under the sheer volume of competing interpretations of the book the original contexts — cultural and intellectual — that shaped Hart's project can be obscured. This book attempts to sweep aside the volumes of academic criticism and return to ‘Troy I’, revealing the world of post-war Oxford that produced Hart and his famous book. Drawing on personal experience of studying and teaching in Oxford at the time Hart developed The Concept of Law, this book recreates the social and intellectual culture of Oxford philosophy and the law faculty in the 1950s. It traces Hart's early work and influences, within and outside Oxford, showing how Hart developed his picture of philosophy and its potential for enriching the understanding of law. It also lays bare the painful shortcomings of post-war Oxford academia, depicting a world of eccentric dons and intellectual Cyclopses — isolated and closed to broad, interdisciplinary exchange — arguing that Hart did not escape from the limitations of his intellectual world.Less
HLA Hart's The Concept of Law is one of the most influential works of philosophy of the 20th century, redefining the field of legal philosophy and introducing generations of students to philosophical reflection on the nature of law. Since its publication in 1961 an industry of academic research and debate has grown up around the book, disputing, refining, and developing Hart's work. Under the sheer volume of competing interpretations of the book the original contexts — cultural and intellectual — that shaped Hart's project can be obscured. This book attempts to sweep aside the volumes of academic criticism and return to ‘Troy I’, revealing the world of post-war Oxford that produced Hart and his famous book. Drawing on personal experience of studying and teaching in Oxford at the time Hart developed The Concept of Law, this book recreates the social and intellectual culture of Oxford philosophy and the law faculty in the 1950s. It traces Hart's early work and influences, within and outside Oxford, showing how Hart developed his picture of philosophy and its potential for enriching the understanding of law. It also lays bare the painful shortcomings of post-war Oxford academia, depicting a world of eccentric dons and intellectual Cyclopses — isolated and closed to broad, interdisciplinary exchange — arguing that Hart did not escape from the limitations of his intellectual world.
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/9780199562688.003.0003
- Subject:
- Law, Philosophy of Law
This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why ...
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This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.Less
This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.
Matthias Klatt (ed.)
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.001.0001
- Subject:
- Law, Philosophy of Law
This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the ...
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This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.Less
This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The chapters explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the chapters is on Alexy's main pre-occupations — his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.
Stanley L. Paulson
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.003.0004
- Subject:
- Law, Philosophy of Law
This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as ...
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This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as justified normativity can be attributed to Kelsen. Some of these doubts are philosophical, others are prompted by a reading of Kelsen's texts. The philosophical doubts stem from the problems associated with transcendental arguments. That is, the appropriate argument on behalf of justified normativity in Kelsen's legal philosophy is a Kantian or Neokantian transcendental argument, which proves, however, to be unworkable. And textual support in Kelsen's writings is scant for the attribution to him of a justified — or contentual — normativity thesis. This cannot come as a surprise. From the very beginning, Kelsen was of the opinion that psychologism and naturalism, prominent in fin de siècle legal science on the European continent, were utterly wrong-headed. He sought to provide an alternative, and it took the form of a normativity thesis — what might be termed the nomological normativity thesis — that is altogether different from the justified normativity thesis. It does precisely the work that Kelsen would have it do, providing an alternative to psychologism and naturalism.Less
This chapter explores the justified normativity thesis in Kelsen's legal philosophy, with particular attention to the works of Raz and Alexy. It raises doubts about whether anything as ambitious as justified normativity can be attributed to Kelsen. Some of these doubts are philosophical, others are prompted by a reading of Kelsen's texts. The philosophical doubts stem from the problems associated with transcendental arguments. That is, the appropriate argument on behalf of justified normativity in Kelsen's legal philosophy is a Kantian or Neokantian transcendental argument, which proves, however, to be unworkable. And textual support in Kelsen's writings is scant for the attribution to him of a justified — or contentual — normativity thesis. This cannot come as a surprise. From the very beginning, Kelsen was of the opinion that psychologism and naturalism, prominent in fin de siècle legal science on the European continent, were utterly wrong-headed. He sought to provide an alternative, and it took the form of a normativity thesis — what might be termed the nomological normativity thesis — that is altogether different from the justified normativity thesis. It does precisely the work that Kelsen would have it do, providing an alternative to psychologism and naturalism.
Matthias Klatt
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199582068
- eISBN:
- 9780191739354
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199582068.003.0001
- Subject:
- Law, Philosophy of Law
It has been frequently remarked that the works of Robert Alexy form a system. Mattias Kumm compares Alexy's work to Dworkin's and claims that ‘their works exhibit a holistic or system-based approach ...
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It has been frequently remarked that the works of Robert Alexy form a system. Mattias Kumm compares Alexy's work to Dworkin's and claims that ‘their works exhibit a holistic or system-based approach to the study of law’. Pavlakos praises Alexy for having developed ‘a systematic philosophy covering most of the key areas of legal philosophy’. With an eye to links between his main works, Robert Alexy himself has remarked that ‘the result may well be a system’. How this system should be explicated, however, has not been addressed in an effective way. This, essentially, is the main aim of this chapter. It begins with an overview of Alexy's main works. The overview reflects the three pillars of Alexy's work, along the lines of his three main monographs and the most important articles. These are Alexy's doctoral thesis, A Theory of Legal Argumentation; his ‘Habilitation’ thesis, A Theory of Constitutional Rights; and The Argument from Injustice. The relations and interconnections between and among the three pillars are identified. These first steps serve to collect and analyse the material and to prepare the way for the last step, which focuses on the system as a whole.Less
It has been frequently remarked that the works of Robert Alexy form a system. Mattias Kumm compares Alexy's work to Dworkin's and claims that ‘their works exhibit a holistic or system-based approach to the study of law’. Pavlakos praises Alexy for having developed ‘a systematic philosophy covering most of the key areas of legal philosophy’. With an eye to links between his main works, Robert Alexy himself has remarked that ‘the result may well be a system’. How this system should be explicated, however, has not been addressed in an effective way. This, essentially, is the main aim of this chapter. It begins with an overview of Alexy's main works. The overview reflects the three pillars of Alexy's work, along the lines of his three main monographs and the most important articles. These are Alexy's doctoral thesis, A Theory of Legal Argumentation; his ‘Habilitation’ thesis, A Theory of Constitutional Rights; and The Argument from Injustice. The relations and interconnections between and among the three pillars are identified. These first steps serve to collect and analyse the material and to prepare the way for the last step, which focuses on the system as a whole.
Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.003.0004
- Subject:
- Law, Philosophy of Law, Legal History
This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist ...
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This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist commitment to divine omnipotence. Soft Natural Law jurists relied on a theology of God's grace (tafaddul, fadl), and the authority of source-texts to fuse fact and value in nature, but contingently so. By fusing fact and value on the basis of divine grace (fadl), Soft Natural Law jurists allowed for the possibility that God may change His mind. Divine grace in Soft Natural Law permits the fusion of fact and value in nature, while at the same time rendering nature contingent in a way that Hard Natural Law theorists did not allow. The chapter provides an overview of different jurists' Soft Natural Law theories, illustrating both the core concepts of Soft Natural Law, as well as the different approaches to this type of natural law theory.Less
This chapter explores how Voluntarist jurists, who rejected Hard Natural Law, nonetheless developed their own natural law theory by fusing fact and value, but nonetheless upheld their voluntarist commitment to divine omnipotence. Soft Natural Law jurists relied on a theology of God's grace (tafaddul, fadl), and the authority of source-texts to fuse fact and value in nature, but contingently so. By fusing fact and value on the basis of divine grace (fadl), Soft Natural Law jurists allowed for the possibility that God may change His mind. Divine grace in Soft Natural Law permits the fusion of fact and value in nature, while at the same time rendering nature contingent in a way that Hard Natural Law theorists did not allow. The chapter provides an overview of different jurists' Soft Natural Law theories, illustrating both the core concepts of Soft Natural Law, as well as the different approaches to this type of natural law theory.
Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.003.0005
- Subject:
- Law, Philosophy of Law, Legal History
This concluding chapter summarizes the book by utilizing two ironies. The first irony is that despite the contested theological positions of Hard Natural Law and Soft Natural Law jurists, their ...
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This concluding chapter summarizes the book by utilizing two ironies. The first irony is that despite the contested theological positions of Hard Natural Law and Soft Natural Law jurists, their philosophies of natural law nonetheless share much in common, namely the fusion of fact and value in nature. The second irony concerns the way in which the Soft Naturalist model of reasoned deliberation is utilized by modern Muslim reforms. Although Soft Natural Law theorists permitted a role for reasoned deliberation, they limited its scope by creating certain methods of analysis, in particular the maqasid model of legal reasoning. Modern Muslims seeking to reform Islamic law from within, however, grasp onto the maqasid model in order to enable and enhance the scope of reasoned deliberation in the law, despite the maqasid model's original design.Less
This concluding chapter summarizes the book by utilizing two ironies. The first irony is that despite the contested theological positions of Hard Natural Law and Soft Natural Law jurists, their philosophies of natural law nonetheless share much in common, namely the fusion of fact and value in nature. The second irony concerns the way in which the Soft Naturalist model of reasoned deliberation is utilized by modern Muslim reforms. Although Soft Natural Law theorists permitted a role for reasoned deliberation, they limited its scope by creating certain methods of analysis, in particular the maqasid model of legal reasoning. Modern Muslims seeking to reform Islamic law from within, however, grasp onto the maqasid model in order to enable and enhance the scope of reasoned deliberation in the law, despite the maqasid model's original design.
Joseph Raz
R. Jay Wallace (ed.)
- Published in print:
- 2005
- Published Online:
- October 2011
- ISBN:
- 9780199278466
- eISBN:
- 9780191699986
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199278466.001.0001
- Subject:
- Philosophy, Moral Philosophy
The Tanner Lectures on Human Values, which honor the American scholar, industrialist, and philanthropist Obert Clark Tanner, are presented annually at each of nine universities in the United States ...
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The Tanner Lectures on Human Values, which honor the American scholar, industrialist, and philanthropist Obert Clark Tanner, are presented annually at each of nine universities in the United States and Great Britain. They were established at the University of California, Berkeley, beginning in the 2000/1 academic year. This book is an exploration of a pervasive but puzzling aspect of our world: value. At the core of the book are the Tanner Lectures delivered at Berkeley in 2001 by the author, who has been one of the leading figures in moral and legal philosophy since the 1970s. His aim is to make sense of the dependence of value on social practice, without falling back on cultural relativism. In response, three philosophers, Christine Korsgaard, Robert Pippin, and Bernard Williams, offer different approaches to the subject. The book begins with an introduction by Jay Wallace, setting the scene for what follows, and ends with a response from the author to his commentators. The result is a debate about the relations between human values and human life.Less
The Tanner Lectures on Human Values, which honor the American scholar, industrialist, and philanthropist Obert Clark Tanner, are presented annually at each of nine universities in the United States and Great Britain. They were established at the University of California, Berkeley, beginning in the 2000/1 academic year. This book is an exploration of a pervasive but puzzling aspect of our world: value. At the core of the book are the Tanner Lectures delivered at Berkeley in 2001 by the author, who has been one of the leading figures in moral and legal philosophy since the 1970s. His aim is to make sense of the dependence of value on social practice, without falling back on cultural relativism. In response, three philosophers, Christine Korsgaard, Robert Pippin, and Bernard Williams, offer different approaches to the subject. The book begins with an introduction by Jay Wallace, setting the scene for what follows, and ends with a response from the author to his commentators. The result is a debate about the relations between human values and human life.
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/9780199562688.003.0004
- Subject:
- Law, Philosophy of Law
This chapter begins with a discussion of the universality of the theses of the general theory of law. It argues that all successful legal theories are parochial; that success can be obtained only ...
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This chapter begins with a discussion of the universality of the theses of the general theory of law. It argues that all successful legal theories are parochial; that success can be obtained only through being parochial. It then focuses on the consequences of parochialism, law as the authoritative voice of a political community, and the instrumental and the non-instrumental views of law. The chapter also discusses the connection between authority and interpretation. First, it discusses the way in which the connection between law and authority leads to a dual interest in the study of law: an interest in the process leading to the authoritative laying down or endorsement of a standard, and an interest in how the fact that a standard has authoritatively been laid down affects its standing. Second, it considers consider the main way in which the fact that law is authoritative affects its interpretation. Finally, it considers the way in which the authoritative nature of law makes interpretation central to legal reasoning.Less
This chapter begins with a discussion of the universality of the theses of the general theory of law. It argues that all successful legal theories are parochial; that success can be obtained only through being parochial. It then focuses on the consequences of parochialism, law as the authoritative voice of a political community, and the instrumental and the non-instrumental views of law. The chapter also discusses the connection between authority and interpretation. First, it discusses the way in which the connection between law and authority leads to a dual interest in the study of law: an interest in the process leading to the authoritative laying down or endorsement of a standard, and an interest in how the fact that a standard has authoritatively been laid down affects its standing. Second, it considers consider the main way in which the fact that law is authoritative affects its interpretation. Finally, it considers the way in which the authoritative nature of law makes interpretation central to legal reasoning.
Leslie Green and Brian Leiter (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606443
- eISBN:
- 9780191729683
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606443.001.0001
- Subject:
- Philosophy, Moral Philosophy
This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general ...
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This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.Less
This work is an annual forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning), the philosophical foundations of specific areas of law (from criminal law to evidence to international law), the history of legal philosophy, and related philosophical topics that illuminate the problems of legal theory.
Andrei Marmor
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691141671
- eISBN:
- 9781400838707
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691141671.003.0002
- Subject:
- Philosophy, General
This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and ...
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This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and in many ways, still the most interesting—defense of a complete detachment view, both in method and substance. It argues that the main reason for the failure of this project is that it identified the detachment view with antireductionism. Kelsen thought that a theory about the nature of law should avoid any reduction of legal facts to facts of any other type, either social or moral.Less
This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and in many ways, still the most interesting—defense of a complete detachment view, both in method and substance. It argues that the main reason for the failure of this project is that it identified the detachment view with antireductionism. Kelsen thought that a theory about the nature of law should avoid any reduction of legal facts to facts of any other type, either social or moral.
Anver M. Emon
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579006
- eISBN:
- 9780191722639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579006.003.0003
- Subject:
- Law, Philosophy of Law, Legal History
This chapter provides an analytic overview of the opponents of Hard Natural Law, whose critique was launched from a Voluntarist perspective. Voluntarist jurists considered Shari'a values to be ...
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This chapter provides an analytic overview of the opponents of Hard Natural Law, whose critique was launched from a Voluntarist perspective. Voluntarist jurists considered Shari'a values to be products of a Voluntarist divine will. Without a scriptural basis (shar'), they argued, there can be no Shari'a valuation or divine obligation. For them, obligation implies punishment and reward, praise and blame – all of which are the products of God's express will. While human reason can make evaluative judgments, their authority is limited by the contingencies and fallibilities of the jurist. To suggest that such judgments reflect a divine intent is tantamount to holding God hostage to human reasoning, and thus undermines the Voluntarists' theological commitment to God's omnipotence.Less
This chapter provides an analytic overview of the opponents of Hard Natural Law, whose critique was launched from a Voluntarist perspective. Voluntarist jurists considered Shari'a values to be products of a Voluntarist divine will. Without a scriptural basis (shar'), they argued, there can be no Shari'a valuation or divine obligation. For them, obligation implies punishment and reward, praise and blame – all of which are the products of God's express will. While human reason can make evaluative judgments, their authority is limited by the contingencies and fallibilities of the jurist. To suggest that such judgments reflect a divine intent is tantamount to holding God hostage to human reasoning, and thus undermines the Voluntarists' theological commitment to God's omnipotence.
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/9780199580088.003.0007
- Subject:
- Law, Philosophy of Law
This chapter is a third version — this time for a Chinese readership — of a brief (sixteen-page) encyclopedia-style overview of the history of Western legal philosophy from the pre-Socratics to Hart, ...
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This chapter is a third version — this time for a Chinese readership — of a brief (sixteen-page) encyclopedia-style overview of the history of Western legal philosophy from the pre-Socratics to Hart, Dworkin, Posner, Unger, and others, focusing on showing the bearing of that history on contemporary problems in the field. Causation, legal personality, and legal interpretation are selected for illustration, but the survey concentrates on the wider issues of method that determine the content and explanatory power of rival approaches. One conclusion along the way is that Aquinas's conception of law's positivity is superior to Hart's and the various legal ‘positivisms’ are a distraction.Less
This chapter is a third version — this time for a Chinese readership — of a brief (sixteen-page) encyclopedia-style overview of the history of Western legal philosophy from the pre-Socratics to Hart, Dworkin, Posner, Unger, and others, focusing on showing the bearing of that history on contemporary problems in the field. Causation, legal personality, and legal interpretation are selected for illustration, but the survey concentrates on the wider issues of method that determine the content and explanatory power of rival approaches. One conclusion along the way is that Aquinas's conception of law's positivity is superior to Hart's and the various legal ‘positivisms’ are a distraction.
Andrei Marmor
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691141671
- eISBN:
- 9781400838707
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691141671.003.0001
- Subject:
- Philosophy, General
This introductory chapter begins with a discussion of the concept of legal validity and the three main schools of thought have emerged in response to the general questions concerning the conditions ...
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This introductory chapter begins with a discussion of the concept of legal validity and the three main schools of thought have emerged in response to the general questions concerning the conditions of legal validity. It then sets out the two main themes that inform the main argument of this book: the relations between the factual and the normative and between substance and method. The book shows that the debates about the possibility of detachment in both substance and method, and the subtle relations between them, have informed a great deal of the theorizing in legal philosophy during the last century. It shows that a substantial part of these debates centers on the question of the possibility of reduction. An overview of the subsequent chapters is also presented.Less
This introductory chapter begins with a discussion of the concept of legal validity and the three main schools of thought have emerged in response to the general questions concerning the conditions of legal validity. It then sets out the two main themes that inform the main argument of this book: the relations between the factual and the normative and between substance and method. The book shows that the debates about the possibility of detachment in both substance and method, and the subtle relations between them, have informed a great deal of the theorizing in legal philosophy during the last century. It shows that a substantial part of these debates centers on the question of the possibility of reduction. An overview of the subsequent chapters is also presented.
Andrei Marmor
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691141671
- eISBN:
- 9781400838707
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691141671.003.0006
- Subject:
- Philosophy, General
H. L. A. Hart characterized his theory about the nature of law as “descriptive and morally neutral.” Like previous legal positivists such as John Austin and Hans Kelsen, he thought that a ...
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H. L. A. Hart characterized his theory about the nature of law as “descriptive and morally neutral.” Like previous legal positivists such as John Austin and Hans Kelsen, he thought that a philosophical account of the nature of law should strive to avoid moralizing of any kind, and should aim at an explanation of the nature of law that is quite general in its application—one that explains what law, in general, is. However, many contemporary legal philosophers claim that a theory about the nature of law, such as Hart's legal positivism, cannot be detached from moral and political views about law's merits. This chapter argues that Hart was quite right, and that it is both possible and theoretically desirable to detach a philosophical account of the nature of law from moral and political views about law's merit.Less
H. L. A. Hart characterized his theory about the nature of law as “descriptive and morally neutral.” Like previous legal positivists such as John Austin and Hans Kelsen, he thought that a philosophical account of the nature of law should strive to avoid moralizing of any kind, and should aim at an explanation of the nature of law that is quite general in its application—one that explains what law, in general, is. However, many contemporary legal philosophers claim that a theory about the nature of law, such as Hart's legal positivism, cannot be detached from moral and political views about law's merits. This chapter argues that Hart was quite right, and that it is both possible and theoretically desirable to detach a philosophical account of the nature of law from moral and political views about law's merit.
H. L. A. Hart
- Published in print:
- 1983
- Published Online:
- March 2012
- ISBN:
- 9780198253884
- eISBN:
- 9780191681431
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253884.001.0001
- Subject:
- Law, Philosophy of Law
The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the ...
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The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the United States, and elsewhere, in many different journals and books, these chapters cover a wide range of topics. They include Professor Hart's first attempt to demonstrate the relevance of linguistic philosophy to jurisprudence, and his first defence of the form of legal positivism later developed in his Concept of Law; his studies of the distinctive teaching of American and Scandinavian jurisprudence; a general survey of the problems of legal philosophy; and an examination of three different attempts to provide a foundation for basic human rights or liberties, and of the notion of ‘social solidarity’ as a justification for the enforcement of conventional morality. Five of the chapters are devoted to the work of Jhering, Kelsen, Holmes, and Lon Fuller. The final chapter brings a philosophical distinction to bear on the solution to a perplexity which has long plagued lawyers, concerning the notion of an attempt to commit a crime. The Introduction gives an account of the main influences on Professor Hart's work; considers the main criticisms of it; and identifies the points where he now considers he was mistaken.Less
The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in 1953 as Professor of Jurisprudence at Oxford. Originally published in England, the United States, and elsewhere, in many different journals and books, these chapters cover a wide range of topics. They include Professor Hart's first attempt to demonstrate the relevance of linguistic philosophy to jurisprudence, and his first defence of the form of legal positivism later developed in his Concept of Law; his studies of the distinctive teaching of American and Scandinavian jurisprudence; a general survey of the problems of legal philosophy; and an examination of three different attempts to provide a foundation for basic human rights or liberties, and of the notion of ‘social solidarity’ as a justification for the enforcement of conventional morality. Five of the chapters are devoted to the work of Jhering, Kelsen, Holmes, and Lon Fuller. The final chapter brings a philosophical distinction to bear on the solution to a perplexity which has long plagued lawyers, concerning the notion of an attempt to commit a crime. The Introduction gives an account of the main influences on Professor Hart's work; considers the main criticisms of it; and identifies the points where he now considers he was mistaken.
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.
Stanley L. Paulson (ed.)
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198763154
- eISBN:
- 9780191695209
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198763154.001.0001
- Subject:
- Law, Philosophy of Law
Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of ...
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Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.Less
Hans Kelsen's efforts in the areas of legal philosophy and legal theory are considered by many scholars of law to be the most influential thinking of recent years. This book makes available some of the best work extant on Kelsen's theory, including chapters newly translated into English. The volume addresses in detail the topic where debate on Kelsen's work has been liveliest: ‘normativity’ as Kelsen's alternative to both traditional legal positivism and natural law theory. The book covers such topics as competing philosophical positions on the nature of law, legal validity, legal powers, and the unity of municipal and international law. It also throws much light on Kelsen's intellectual milieu — as well as his intellectual debts.
