In a little over two hundred years, American legal thought moved from premodernism through modernism and into postmodernism. This book charts that intellectual voyage, stressing both the historical contexts in which ideas unfolded and the inherent force of the ideas themselves.Author Stephen M. Feldman first defines "premodernism," "modernism," and "postmodernism," then explains the development of American legal thought through these three intellectual periods. His narrative revolves around two broad, interrelated themes: jurisprudential foundations and the notion of (...) progress. He points out that much of American legal thought has grappled with the problem of identifying the foundations of the American judicial system and judicial decision making. The various ideas of jurisprudential foundations, moreover, are closely tied to shifting notions of progress-the definition of the term, assumptions about the possibility of progress, and hopes about how law might contribute to it.This book's broad historical sweep and its clear explanations of the competing theoretical positions of current legal scholarship make it indispensable to students and scholars of jurisprudence and American legal history. (shrink)

Why is postmodernist discourse so biased against the Enlightenment? Indeed, postmodern theory challenges the validity of the rational basis of modern historical scholarship and the Enlightenment itself. Rather than avoiding this conflict, the contributors to this vibrant collection return to the philosophical roots of the Enlightenment, and do not hesitate to look at them through a postmodernist lens, engaging issues like anti-Semitism, Utopianism, colonial legal codes, and ideas of authorship. Dismissing the notion that the two camps are ideologically opposed (...) and thus incompatible, these essays demonstrate an exciting new scholarship that confidently mixes the empiricism of Enlightenment thought with a strong postmodernist skepticism, painting a subtler and richer historical canvas. (shrink)

This chapter contains sections titled: Modernism Postmodern Thought Law and Postmodernism The Postmodern State Conclusion References.

"Most modern legal theorists seek to limit their enquiries to a particular sort of law, on the assumption that law is necessarily restricted in its interactions with other social practices. margaret Davies deliberately - and provocatively - questions the usefulness of such 'positivist' dogmas, asserting that the law can and should be seen as multi-dimensional. Davies argues that the law is everywhere - in metaphysics, the social environment, language and the psyche. In a persuasive meeting of postmodern discourse, deconstruction, (...) feminism and legal theory, Davies creates new ways of thinking about the law by creating links with other practices and disciplines where none previously existed. This is a powerful critique of the ideology and theory of law in the West, providing a much-needed link between conventional legal philosophy and modern movements in legal theory." --From back cover. (shrink)

This chapter contains sections titled: Nineteenth‐Century Idealism From Idealism to Nineteenth‐Century Constructivism: The Case of the Historical School From the Turn of the Century to World War II: Disintegration and Reconstruction The Period from 1933 to 1945: “Völkische” Jurisprudence The Period from 1945 to the Present: From Natural Law to Postmodernism References.

There are those who believe that modern society's reliance upon law, politics and science to both regulate and emancipate society has reached a crisis point and can no longer provide answers to current social problems. Toward a New Legal Common Sense engages in a series of sociological analyses of law in order to illustrate the need for a profound theoretical reconstruction of the notion of legality based on locality, nationality and globality. In this way the author shows how developments (...) including suprastate organisations such as the European Union and international human rights law can be given their proper place in the sociology of law, and suggests a new set of social structures that might sustain the emancipatory elements that have disappeared from modern society. This 2002 edition, of a title originally published by Routledge, is part of the acclaimed Law in Context Series, whose aim is to develop broad interdisciplinary perspectives on law. Toward a New Legal Common Sense is written for students taking law and globalisation courses, and political science, philosophy and sociology students doing optional subjects. (shrink)

The article considers the notary as a subject of active influence on the formation of postmodern democratic legal society, mediation of law in postmodern society. The constitutional definition of the state in this status does not mean that the civil law consciousness prevails in all spheres of its life. Since no person in society does not need this type of legal service, it is quite objective to consider this community as a subject whose activities should be considered as (...) a subject of formation not only of legal consciousness of society but also a leading subject of civil society. This primarily applies to private notaries, who, unlike public notaries, are fully responsible for the results of their activities. After all, a legal duty is organically combined with the responsibility from which the public notary is released. The study of the manifestations of the phenomenon of postmodernism is relevant to many disciplines, including - the philosophy of law. Modern research shows that classical types of legal understanding do not satisfy the understanding of postmodern law, which indicates the need to find a fundamentally new concept of law. The author concludes that the solution to this problem should be sought in the field of theories that offer new approaches to the interpretation of legal texts; this area is considered the most promising. (shrink)

Critical theory encapsulates the many connections between theory and praxis. This Research Handbook addresses the broad range of these connections in relation to legal thought. Featuring contributions from leading scholars of law and critical theory, the Handbook confronts the logic of the institutional with its specific challenges right across the broad field of legal thought. The Research Handbook initially addresses the question of definition, tracking the origins and development of critical legal theory along its European and North (...) American trajectories. Thematic connections are made between the development of legal theory and other currents of critical thought including feminism, Marxism, critical race theory, varieties of postmodernism, as well as the various 'turns' (ethical, aesthetic, political) of critical legal theory. Finally, particular legal disciplines are examined, including labour, criminal and intellectual property law, exploring what critical approaches reveal about them with the clear focus on opportunities for social transformation. This comprehensive and forward-looking Research Handbook will be of great interest to adherents of critical legal theory and scholars of jurisprudence more widely, as it provides a valuable analysis of the latest research and thinking in this dynamic field. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:A Theory of International Bioethics: Multiculturalism, Postmodernism, and the Bankruptcy of Fundamentalism 1Robert Baker (bio)AbstractThis first of two articles analyzing the justifiability of international bioethical codes and of cross-cultural moral judgments reviews “moral fundamentalism,” the theory that cross-cultural moral judgments and international bioethical codes are justified by certain “basic” or “fundamental” moral principles that are universally accepted in all cultures and eras. Initially propounded by the judges at (...) the 1947 Nuremberg Tribunal, moral fundamentalism has become the received justification of international bioethics, and of cross-temporal and cross-cultural moral judgments. Yet today we are said to live in a multicultural and postmodern world. This article assesses the challenges that multiculturalism and postmodernism pose to fundamentalism and concludes that these challenges render the position philosophically untenable, thereby undermining the received conception of the foundations of international bioethics. The second article, which follows, offers an alternative model—a model of negotiated moral order—as a viable justification for international bioethics and for transcultural and transtemporal moral judgments.Man in the Twentieth Century can not be circumscribed by the standards of any single culture.American Anthropological Association (1948) in a statement officially denouncing the 1948 United Nation’s Declaration of Human Rights.Recently... so-called “liberal” medicine has revived the old rights of a clinic understood in terms of a special contract, a tacit pact made between one man and another. This patient gaze has even been attributed the power of assuming [a role in clinical decision making].Miracles are not so easy to come by....Michel Foucault (1975, p. 5) [End Page 201]An Overview of the AnalysisInternational bioethics originated in the trauma of the Holocaust, specifically, in the 1946–1947 Nuremberg “Doctors Trial” when a tribunal of three American judges convicted Nazi medical researchers of “crimes against humanity.” In justifying their judgment, the Nuremberg Tribunal cited 10 principles for morally permissible research, which, they claimed, were based on “fundamental” principles that civilized societies “all agree” upon and accept as the foundations of their “moral, ethical, and legal” norms. Foremost among the principles was one stating that morally permissible human experiments require the informed voluntary consent of the subject. The Nuremberg judgment soon became associated with the ideal of human rights declared in the 1948 United Nations Charter. These two ideas—fundamental principles of morality and human rights—have been linked in all major formulations of international bioethics promulgated in the past 50 years, including the Council of Europe’s 1997 Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine (Council of Europe 1997; Dommel and Alexander 1997). In this paper, I explore the received justification for international bioethics—the idea that it is grounded in fundamental principles accepted in all societies—tracing it from its initial, almost off-hand, promulgation by the Nuremberg Tribunal, through its more thoughtful development by such bioethicists as Ruth Macklin, to its more complex use by the President’s Advisory Committee on Human Radiation Experiments.After a brief review of the evolution of the received justification, I discuss the viability of this justification in the face of the critique implicit in two important intellectual movements: multiculturalism and postmodernism. In the international context, multiculturalism asserts the claim that there are no common moral principles shared by all cultures. Postmodernism asserts a similar claim against all universal standards, moral and nonmoral. In the 1990s, bioethicists have attempted to respond to these claims in various ways. These responses are documented, analyzed, and then shown to be “bankrupt,” in the sense that they undercut the most important objective of moral fundamentalism: the justification of transcultural moral judgments, such as the condemnation of the Nazi doctors.A second article, which follows the present one in the same issue of the Kennedy Institute of Ethics Journal, revisits the contractarian tradition [End Page 202] of Hobbes and Locke, as it has been reinterpreted by David Gauthier (1986), John Rawls (1971, 1993), and Robert Nozick (1974), to develop the idea of negotiated moral order as the basis of international bioethics. When conceptualized as a negotiated moral order, international bioethics can accept the genuine insights... (shrink)

Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and the limits of conceptual analysis (1998, (...) 2001) -- Why Quine is not a postmodernist (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002). (shrink)

Feminist legal theory has undergone some significant changes over the past thirty years. This article provides an introductory overview of feminist legal theory, from liberal and radical feminism through to postmodernism. It outlines some of the major current issues within feminist legal thought, notably debates surrounding culture and religion, the relationship of sex and sexuality scholarship to feminist research, and the position of women within transitional societies.

This is an expanded second edition of Nicholas Mercuro and Steven Medema's influential book Economics and the Law, whose publication in 1998 marked the most comprehensive overview of the various schools of thought in the burgeoning field of Law and Economics. Each of these competing yet complementary traditions has both redefined the study of law and exposed the key economic implications of the legal environment. The book remains true to the scope and aims of the first edition, but also (...) takes account of the field's evolution. At the book's core is an expanded discussion of the Chicago school, Public Choice Theory, Institutional Law and Economics, and New Institutional Economics. A new chapter explores the Law and Economics literature on social norms, today an integral part of each of the schools of thought. The chapter on the New Haven and Modern Civic Republican approaches has likewise been expanded. These chapters are complemented by a discussion of the Austrian school of Law and Economics. Each chapter now includes an "At Work" section presenting applications of that particular school of thought. By providing readers with a concise, noncritical description of the broad contours of each school, this book illuminates the fundamental insights of a field with important implications not only for economics and the law, but also for political science, philosophy, public administration, and sociology. (shrink)

Hegel's legacy is particularly controversial, not least in legal theory. He has been classified as a proponent of either natural law, legal positivism, the historical school, pre-Marxism, postmodern critical theory, and even transcendental legal theory. To what degree has Hegel actually influenced contemporary legal theorists? This review article looks at Michael Salter's collection Hegel and Law. I look at articles on civil disobedience, contract law, feminism, and punishment. I conclude noting similarities between Hegel's legal theory (...) and that of Ronald Dworkin. I also criticize the volume's emphasis on Hegel's postmodern credentials, all of which I doubt. (shrink)

Essential reading for all those who wish to understand why legal theory is important to legal education, and for those who wish to extend their understanding of this dynamic academic discipline. A variety of perspectives are drawn together including social, literary, feminist and postmodernist theories.

The convergence of complementary and alternative medicine (CAM) and evidence-based medicine (EBM) is a prominent feature of healthcare in western countries, but it is currently undertheorised, and its implications have been insufficiently considered. Two models of convergence are described – the totally integrated evidence-based model (TI) and the multicultural-pluralistic model (MP). Both models are being incorporated into general medical practice. Against the background of the reasons for the increasing utilisation of CAM by the public and by general practitioners, TI-convergence is (...) supported and MP-convergence is rejected. MP-convergence is epistemologically and clinically incoherent, and it cannot be regulated. It is also inconsistent with developments in the legal determination of the standard of care for both diagnosis/treatment and disclosure. These claims concerning MP-convergence are justified by the fact that science is not a member of the group of perspectives or world-views which postmodernism treats as equally valid, and this is especially important for healthcare. (shrink)

"Law week soccer competition: 16-19 May 2005." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (198), pp. 25.

Classical thinkers -- The consensus tradition -- Critical perspectives -- Feminism and law -- The interpretive tradition -- Postmodernism and difference -- Legal pluralism and globalisation.

The following jurisprudence paper examines the implications of postmodern thought upon our conception of law. In this paper I argue that, despite the absolute, all-consuming moral relativism towards which postmodernism seems to lead in its most extreme form, its acceptance in fact in no way undermines the possibility of finding solid ground for our legal principles. This paper contends that moral objectivity can be found in the individual experience of suffering generated by these very subjective concoctions. Subjective concoctions (...) or not, they are real in that they imbue a sense of value into conditions, and may thus serve as foundational principles for law. While our value systems are stripped of all claim to objective authority, ultimately, all postmodernism does is force us to set aside our larger concepts of “justice,” and instead root our legal conceptions at this far more fundamental level of human experience. (shrink)

This article seeks to identify and address the normative void that resides at the heart of postmodernist-feminist theory, and to propose a philosophical framework – beyond postmodernism, but incorporating its central insights – for thinking through the normative questions with which feminists are inevitably confronted in their engagements with positive law. Two varieties of postmodernist-feminism are identified and critically analysed: the ‘corporeal feminism’ of Elizabeth Grosz and Judith Butler, which seeks to ground feminist critical practice in the irruptive capacities (...) of the material body considered as an arte fact of social construction; and the deconstructionist feminism of Drucilla Cornell, for whom ‘the feminine’ is an indeterminate but disruptive force beyond its construction in law and in other social sites. The first component of the argument elaborated here is that each of these approaches ultimately reduces to a form of aestheticism which is incapable of generating a worthwhile and workable feminist approach to the restructuring of politics and law. The second component of the argument involves a return to aesthetics, in particular to the philosophical aesthetics of Kant’s Critique of Judgement. Kant’s aesthetic philosophy, it will be suggested, yields a framework of concepts which, duly re-manipulated, could speak to the very concerns that have inspired postmodernist-feminism: how to attend to (bodily) particularity while avoiding the dangers associated with ‘essentialism’; and how to theorise the propensity of the unrepresentable power of the feminine to exceed both embodied human capacities and the confining rein of socially privileged rationalities. Crucially, however it also responds to a set of preoccupations – those of the feminist lawyer – that cannot be accommodated by postmodernism: how to translate embodied experience into (legal) norms; generalise from the particular; seek consensus; and codify an endless potentiality in the form of law. (shrink)

Recent developments in the Arab world reopen one of the most fertile debate topics in international relations theory: the universal nature of the concept “fundamental human rights” and their content. The perspectives are different, being influenced by an ideological background, especially theological, apparently contradictory, affecting the positions of major international actors, stimulating the revival of controversies on major differences between Western world and the developing societies. Through a balanced analysis, specific to critical postmodernism, of the way each civilization (according (...) to Samuel Huntington) relates to the human being and to its place within its own legal architecture, one can notice that, beyond any differences, joint elements can be identified for further integration into a common fundamental text conferring the consensual universality indispensable to such an important principle. (shrink)

The postmodernist view, with its emphasis on the nature of discursive practices in constructing subjectivity and reality, has found many applications. This book develops a critically informed psychoanalytic semiotic view derived from Lacan, and applies it to the study of law. It also integrates some of the central concepts of chaos theory in describing how the legal text is constructed and how it may be read. Postmodern feminist analyses focusing on a possible ecriture feminine provide key insights, and the (...) notion of an empowered democracy is offered as a potentially generating milieu for a revolutionary replacement discourse. (shrink)

Purpose. The paper considers the establishment of the paradigmatic determinants of the understanding of crime on the basis of fundamental changes in understanding of the essence of a man in ancient, medieval, Renaissance, modern and postmodern philosophy. Theoretical basis. The author determines that the understanding of the concept of crime is possible only in the combination of historical, philosophical, legal and sociological approaches. The interpretation of the essence of this concept dynamics and relevant legal practices is based on (...) structuralist, post-structuralist and hermeneutical methodological principles. Originality. The author has proved that the concept of "crime" is not a constant but a historically variable category whose dynamics of meanings is linked to a change in philosophical anthropological paradigms. Its understanding is primarily related to the interpretation of the essence of a man and the imperatives of his behavior. This allows a new understanding of the philosophical foundations of modern criminology. Conclusions. The article establishes that in the history of Western philosophy, there are five anthropological paradigms that differ in a thorough rethinking of the essence of a man. The first cosmocentric regards man as a microcosm, his soul and actions must be in harmony with the harmony of the Cosmos. The second Theocentric considers a man the image and likeness of God, though he is at the same time burdened with original sin. In the era of early Modernism, the third paradigm, which we called cognitive-centric, becomes dominant, since the essence of a man is reduced primarily to his mind. It gradually changes to the fourth – sociocentric, which focuses on the social essence of a man. However, despite its continued existence in our time, at the end of the XX century, there is a transition to the fifth paradigm – postmodernist, which deconstructs the essence of a man, reducing it to the role of an element of power systems. These paradigms, with a certain synchronicity, create the corresponding concepts of "crime": from violation of polis-space laws to identification with sin, from non-observance of mental and moral standards to social deviance. Contemporary understandings of crime are, for the most part, relativistic and constructivist, which is consistent with the postmodern anthropological paradigm. However, the diversity of interpretations of the concept of "crime" that exists in the current scientific literature needs further comprehension. (shrink)

This article explores the epistemological and strategic issues facing feminists embarking upon narrative explorations into women's experiences. It considers the implications for feminist epistemology of acknowledging women's participation in dominant ideologies about their social role. Focusing upon questions of women's agency, it asks how this `conforming knowledge' might complicate postmodernist feminist notions of resisting and reconstructing law's categorisation of `Woman'. It also represents an attempt to clarify, in advance of my own analysis of women's agency in abortion decision-making, why postmodern (...) feminists might talk to women – the `subjects' of law's constructive power. It seeks additionally to open a discussion among a wider audience of feminists about what we might do with the information uncovered through listening to women's own stories in an area pronounced upon authoritatively by a multitude of discourses. (shrink)

An exploration of the connections between law, science, and truth, this paper argues that ‘truth’ is an evolving, rather than fixed, concept. It is a human creation, and the processes, or standards, by which it has been evaluated have changed over time. Currently knowledge production is anchored in the natural sciences but reproduced and validated by philosophical rationalisation. There are two problems with this technique of knowledge verification (or ‘veridiction’). First, the natural sciences are not, in fact, practiced according to (...) their ideal forms; and second, the Queen of Sciences, physics, underwent two fundamental paradigm shifts in the early nineteenth century. General relativity and quantum theory entered the scene, sending ripples throughout science, and the social sciences. These changes too have been slowly absorbed by philosophy, giving rise in part to the postmodernist and deconstructivist movements. I chart this gradual evolution of truth and knowledge production in physics and in law and analyse the resistance it has faced from both classical law and classical physics. Finally I argue that this resistance could be overcome, if legal theory, and especially legal positivism, would embrace a more accurate and up-to-date understanding of the science it purports to examine and emulate. (shrink)

This volume addresses the central theme of adjusting the United Nations system in light of, firstly, the broadening definition of security, secondly, a perceived shift from modernity to post-modernity; and finally, the contemporary debate about reform, adaptation and institutional learning in multilateral institutions during transnational periods. The UN has not been successful in learning appropriate lessons that could facilitate requisite changes to its structure and operations. Thus the authors in this study focus on the lessons learned from the organizations' recent (...) performance in collective security, preventative diplomacy, preventative deployment, peacekeeping, peacemaking, peace maintenance, and international legal, environmental and trade regulation. (shrink)