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Beyond Legal Positivism
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Book Synopsis Beyond Legal Positivism by : Whitley R. P. Kaufman
Download or read book Beyond Legal Positivism written by Whitley R. P. Kaufman and published by Springer Nature. This book was released on 2023-10-28 with total page 167 pages. Available in PDF, EPUB and Kindle. Book excerpt: Legal Positivism has been the dominant school of legal philosophy for much of the last century, despite its many critics. Its central tenet has long been that there is no necessary connection between law and morality. This book provides a broad but clear and jargon-free account of the central objections to the theory and why those objections are sufficient to show that legal positivism is no longer tenable. This includes a broad critique of the purported distinction method of legal positivism, the idea of ‘conceptual analysis,’ as well as a detailed assessment of the most influential of all legal positivist theories, that of H.L.A. Hart. The book also provides a defense of the natural law school, which holds in contrast to legal positivism that the authority of law arises from its intrinsic connection to morality. The author demonstrates that most of the criticism of the natural law school arises from a caricatured account of that doctrine, for instance the idea that it requires substantive theological commitments or particular conceptions of human nature. In contrast, the author presents an account of natural law theory that is grounded in a commitment to moral truth, but not to any theological beliefs. The nature of law can only be understood in terms of its moral function, to provide a clear set of moral rules that are required for a society to function effectively.
Book Synopsis Legal Positivism in a Global and Transnational Age by : Luca Siliquini-Cinelli
Download or read book Legal Positivism in a Global and Transnational Age written by Luca Siliquini-Cinelli and published by Springer Nature. This book was released on 2019-08-30 with total page 315 pages. Available in PDF, EPUB and Kindle. Book excerpt: A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.
Book Synopsis The Cambridge Companion to Legal Positivism by : Torben Spaak
Download or read book The Cambridge Companion to Legal Positivism written by Torben Spaak and published by Cambridge University Press. This book was released on 2021-02-04 with total page 807 pages. Available in PDF, EPUB and Kindle. Book excerpt: The book brings together 33 state-of-the-art chapters on the import and the pros and cons of legal positivism.
Book Synopsis International Theory by : Steve Smith
Download or read book International Theory written by Steve Smith and published by Cambridge University Press. This book was released on 1996-06-13 with total page 388 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book provides a major review of the state of international theory. It is focused around the issue of whether the positivist phase of international theory is now over, or whether the subject remains mainly positivistic. Leading scholars analyse the traditional theoretical approaches in the discipline, then examine the issues and groups which are marginalised by mainstream theory, before turning to four important new developments in international theory (historical sociology, post-structuralism, feminism, and critical theory). The book concludes with five chapters which look at the future of the subject and the practice of international relations. This survey brings together key figures who have made leading contributions to the development of mainstream and alternative theory, and will be a valuable text for both students and scholars of international relations.
Download or read book Legality written by Scott J. Shapiro and published by Harvard University Press. This book was released on 2013-09-02 with total page 483 pages. Available in PDF, EPUB and Kindle. Book excerpt: What is law? This question has preoccupied philosophers from Plato to Thomas Hobbes to H. L. A. Hart. Yet many others find it perplexing. How could we possibly know how to answer such an abstract question? And what would be the point of doing so? In Legality, Scott Shapiro argues that the question is not only meaningful but vitally important. In fact, many of the most pressing puzzles that lawyers confront—including who has legal authority over us and how we should interpret constitutions, statutes, and cases—will remain elusive until this grand philosophical question is resolved. Shapiro draws on recent work in the philosophy of action to develop an original and compelling answer to this age-old question. Breaking with a long tradition in jurisprudence, he argues that the law cannot be understood simply in terms of rules. Legal systems are best understood as highly complex and sophisticated tools for creating and applying plans. Shifting the focus of jurisprudence in this way—from rules to plans—not only resolves many of the most vexing puzzles about the nature of law but has profound implications for legal practice as well. Written in clear, jargon-free language, and presupposing no legal or philosophical background, Legality is both a groundbreaking new theory of law and an excellent introduction to and defense of classical jurisprudence.
Book Synopsis Hans Kelsen and the Natural Law Tradition by : Peter Langford
Download or read book Hans Kelsen and the Natural Law Tradition written by Peter Langford and published by BRILL. This book was released on 2019-03-19 with total page 555 pages. Available in PDF, EPUB and Kindle. Book excerpt: Hans Kelsen and the Natural Law Tradition provides the first sustained examination of Hans Kelsen’s critical engagement, itself founded upon a distinctive theory of legal positivism, with the Natural Law Tradition.
Book Synopsis Philosophy of Law by : Raymond Wacks
Download or read book Philosophy of Law written by Raymond Wacks and published by Oxford University Press. This book was released on 2014-02 with total page 169 pages. Available in PDF, EPUB and Kindle. Book excerpt: Raymond Wacks reveals the intriguing and challenging nature of legal philosophy, exploring the notion of law and its role in our lives. He refers to key thinkers from Aristotle to Rawls, from Bentham to Derrida and looks at the central questions behind legal theory, and law's relation to justice, morality, and democracy.
Book Synopsis An Institutional Theory of Law by : N. MacCormick
Download or read book An Institutional Theory of Law written by N. MacCormick and published by Springer Science & Business Media. This book was released on 2013-04-17 with total page 242 pages. Available in PDF, EPUB and Kindle. Book excerpt:
Book Synopsis Taking Rights Seriously by : Ronald Dworkin
Download or read book Taking Rights Seriously written by Ronald Dworkin and published by Harvard University Press. This book was released on 2018-06-25 with total page 396 pages. Available in PDF, EPUB and Kindle. Book excerpt: What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey? A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the “ruling” theory in Anglo-American law—legal positivism and economic utilitarianism—and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority. Mr. Dworkin criticizes in detail the legal positivists’ theory of legal rights, particularly H. L. A. Hart’s well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of John Rawls’s theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials. Finally, Professor Dworkin considers the right to liberty, often thought to rival and even preempt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals. Ronald Dworkin’s theory of law and the moral conception of individual rights that underlies it have already made him one of the most influential philosophers working in this area. This is the first publication of these ideas in book form.
Book Synopsis International Legal Positivism in a Post-Modern World by : Jörg Kammerhofer
Download or read book International Legal Positivism in a Post-Modern World written by Jörg Kammerhofer and published by Cambridge University Press. This book was released on 2014-10-06 with total page 555 pages. Available in PDF, EPUB and Kindle. Book excerpt: International Legal Positivism in a Post-Modern World provides fresh perspectives on one of the most important and most controversial families of theoretical approaches to the study and practice of international law. The contributors include leading experts on international legal theory who analyse and criticise positivism as a conceptual framework for international law, explore its relationships with other approaches and apply it to current problems of international law. Is legal positivism relevant to the theory and practice of international law today? Have other answers to the problems of international law and the critique of positivism undermined the positivist project and its narratives? Do modern forms of positivism, inspired largely by the theoretically sophisticated jurisprudential concepts associated with Hans Kelsen and H. L. A. Hart, remain of any relevance for the international lawyer in this 'post-modern' age? The authors provide a wide variety of views and a stimulating debate about this family of approaches.
Book Synopsis Law, Rights and Discourse by : George Pavlakos
Download or read book Law, Rights and Discourse written by George Pavlakos and published by Bloomsbury Publishing. This book was released on 2007-07-11 with total page 390 pages. Available in PDF, EPUB and Kindle. Book excerpt: A philosophical system is not what one would expect to find in the work of a contemporary legal thinker. Robert Alexy's work counts as a striking exception. Over the past 28 years Alexy has been developing, with remarkable clarity and consistency, a systematic philosophy covering most of the key areas of legal philosophy. Kantian in its inspiration, his work admirably combines the rigour of analytical philosophy with a repertoire of humanitarian ideals reflecting the tradition of the Geisteswissenschaften, rendering it one of the most far-reaching and influential legal philosophies in our time. This volume has been designed with two foci in mind: the first is to reflect the breadth of Alexy's philosophical system, as well as the varieties of jurisprudential and philosophical scholarship in the last three decades on which his work has had an impact. The second objective is to provide for a critical exchange between Alexy and a number of specialists in the field, with an eye to identifying new areas of inquiry and offering a new impetus to the discourse theory of law. To that extent, it was thought that a critical exchange such as the one undertaken here would most appropriately reflect the discursive and critical character of Robert Alexy's work. The volume is divided into four parts, each dealing with a key area of Alexy's contribution. A final section brings together concise answers by Robert Alexy. In composing these, Alexy has tried to focus on points and criticisms that address new aspects of discourse theory or otherwise point the way to future developments and applications. With its range of topics of coverage, the number of specialists it engages and the originality of the answers it provides, this collection will become a standard work of reference for anyone working in legal theory in general and the discourse theory of law in particular.
Author :Wilfrid J. Waluchow Publisher :Oxford University Press on Demand ISBN 13 :9780198258124 Total Pages :290 pages Book Rating :4.2/5 (581 download)
Book Synopsis Inclusive Legal Positivism by : Wilfrid J. Waluchow
Download or read book Inclusive Legal Positivism written by Wilfrid J. Waluchow and published by Oxford University Press on Demand. This book was released on 1994 with total page 290 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book develops a general theory of law, inclusive legal positivism, which seeks to remain within the tradition represented by authors such as Austin, Hart, MacCormick, and Raz, while sharing some of the virtues of both classical and modern theories of natural law, as represented by authors such as Aquinas, Fuller, Finnis, and Dworkin. Its central theoretical questions are: Does the existence or content of positive law ever depend on moral considerations? If so, is this fact consistent with legal positivism? The author shows how inclusive positivism allows one to answer yes to both of these questions. In addition to articulating and defending his own version of legal positivism, which is a refinement and development of the views of H.L.A. Hart as expressed in his classic book The Concept of Law, the author clarifies the terms of current jurisprudential debates about the nature of law. These debates are often clouded by failures to appreciate that different theorists are offering differing kinds of theories and attempting to answer different questions. There is also a failure, principally on the part of Ronald Dworkin, to characterize opposing theories correctly. The clarity of Waluchow's work will help to remove the confusion which has hitherto marred some jurisprudential debate, particularly about Dworkin's work.
Book Synopsis From Positivism to Idealism by : Sean Coyle
Download or read book From Positivism to Idealism written by Sean Coyle and published by Routledge. This book was released on 2017-11-28 with total page 317 pages. Available in PDF, EPUB and Kindle. Book excerpt: Illuminating the idea of legality by a consideration of its moral nature, this book explores the emergence and development of two rival traditions of legal thought (those of 'positivism' and 'idealism') which together define the structure of modern juridical thought. In doing so, it consciously departs from many of the tendencies and working assumptions that define modern legal philosophy. The book examines the shifts in thinking about the rule of law and the wider significance of law, brought about by changing conceptions of the nature of law: from an understanding of law in which the primary focus is on rights, to an articulation of the legal order as a body of deliberately posited rules, and finally to the present understanding of law as a systematic body of rules and principles underpinned by an abiding concern with individual rights. By exposing the historical and metaphysical underpinnings of these theoretical traditions, the book imparts an idea of their limitations and moves beyond the understandings offered within them of the nature of legality.
Book Synopsis The Invisible Origins of Legal Positivism by : W.E. Conklin
Download or read book The Invisible Origins of Legal Positivism written by W.E. Conklin and published by Springer Science & Business Media. This book was released on 2001-08-31 with total page 370 pages. Available in PDF, EPUB and Kindle. Book excerpt: Conklin's thesis is that the tradition of modern legal positivism, beginning with Thomas Hobbes, postulated different senses of the invisible as the authorising origin of humanly posited laws. Conklin re-reads the tradition by privileging how the canons share a particular understanding of legal language as written. Leading philosophers who have espoused the tenets of the tradition have assumed that legal language is written and that the authorising origin of humanly posited rules/norms is inaccessible to the written legal language. Conklin's re-reading of the tradition teases out how each of these leading philosophers has postulated that the authorising origin of humanly posited laws is an unanalysable externality to the written language of the legal structure. As such, the authorising origin of posited rules/norms is inaccessible or invisible to their written language. What is this authorising origin? Different forms include an originary author, an a priori concept, and an immediacy of bonding between person and laws. In each case the origin is unwritten in the sense of being inaccessible to the authoritative texts written by the officials of civil institutions of the sovereign state. Conklin sets his thesis in the context of the legal theory of the polis and the pre-polis of Greek tribes. The author claims that the problem is that the tradition of legal positivism of a modern sovereign state excises the experiential, or bodily, meanings from the written language of the posited rules/norms, thereby forgetting the very pre-legal authorising origin of the posited norms that each philosopher admits as offering the finality that legal reasoning demands if it is to be authoritative.
Book Synopsis Coercion and the Nature of Law by : Kenneth Einar Himma
Download or read book Coercion and the Nature of Law written by Kenneth Einar Himma and published by Oxford University Press. This book was released on 2020-05-06 with total page 289 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Coercion Thesis has been a subject of longstanding debate, but legal positivist scholarship over the last several decades has concluded that coercion is not necessary for law. Coercion and the Nature of Law is concerned with reviving the Coercion Thesis, presenting a strong case for the inherently coercive nature of legal regulation, and arguing that anything properly characterized as a legal system must back legal norms prohibiting breaches of the peace with the threat of a coercive sanction. Himma presents the argument that people are self-interested beings who must compete in a world of scarcity for everything they need to survive and thrive. The need to compete for resources naturally leads to conflict that can breach the peace, and threatens the ability to live together in a community and reap the social benefits of cooperation. Law only functions as a system if it can maintain the peace enough for community to continue, and thus systems of law cannot succeed in doing anything that we want systems of law to do unless they back laws prohibiting violent assaults on persons or property with the threat of punishment; without sanctions, we would descend into something resembling a condition of war-of-all-against-all. We adopt coercive systems of regulation precisely to avoid having to live under such conditions. The book is divided into three parts: (1) a prima facie logical-empirical case for the Coercion Thesis, (2) a study of the "society of angels" and international law counterexamples, and why they do not refute the thesis, and (3) an analysis of how law guides behaviour and the implications of the Coercion Thesis on reasons for action. Going against the current conventional wisdom in legal philosophy, Himma makes a systematic defence of the Coercion Thesis arguing that coercion or enforcement mechanisms are not only a necessary feature of legal systems, but a conceptually necessary feature of legal systems.
Book Synopsis Beyond Legal Reasoning: a Critique of Pure Lawyering by : Jeffrey Lipshaw
Download or read book Beyond Legal Reasoning: a Critique of Pure Lawyering written by Jeffrey Lipshaw and published by Routledge. This book was released on 2017-03-27 with total page 300 pages. Available in PDF, EPUB and Kindle. Book excerpt: The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors. This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.
Book Synopsis Law Beyond the State by : Carmen E. Pavel
Download or read book Law Beyond the State written by Carmen E. Pavel and published by Oxford University Press. This book was released on 2021-03-30 with total page 217 pages. Available in PDF, EPUB and Kindle. Book excerpt: Despite growing skepticism about the value of international law and its compatibility with state sovereignty, states should improve and strengthen international law because it makes a critical contribution to an international order characterized by peace and justice. In recent years, international agreements and institutions have become particularly contentious. China is refusing to abide by the decision of an international arbitration decision implementing UNCLOS rules in the South China Sea, and Donald Trump has withdrawn the US from international agreements including the Paris Agreement on Climate Change of 2015. Such retreats expose widespread ambivalence towards cooperation through international law, and reverse the gains made by long-standing processes of legalization. In Law Beyond the State, Carmen Pavel responds to the ambivalent attitude states have with respect to international law by offering moral and legal reasons for them to improve, strengthen, and further institutionalize its capacity. She argues that the same reasons which support the development of law at the domestic level, namely the cultivation of peace, the protection of individual rights, the facilitation of complex forms of cooperation, and the resolution of collective action problems, also support the development of law at the international level. The argument thus engages in institutional moral reasoning. Pavel shows why it should matter to individuals that their states are part of a rule-governed international order. When states are bound by common rules of behavior, their citizens reap the benefits. International law encourages states to protect individual rights and provides a forum where they can communicate, negotiate, and compromise on their differences in order to protect themselves from outside interference and pursue their domestic policies more effectively, including those directed at enhancing their citizen's welfare. Thus, Pavel shows that international law makes a critical, irreplaceable, and defining contribution to an international order characterized by peace and justice. At a time when challenges of cooperation beyond state boundaries include climate change, health epidemics, and large-scale human rights violations, Law Beyond the State issues a powerful reminder of the tools we have to address them.
