Prior to Citizen’s United, particular types of corporate spending for purposes of influencing US-election-outcomes were limited due to an inherent skepticism of corporate influence in American politics. It was presumed that where corporations accessed wealth and resources for purposes of electing candidates that best serve corporate interests, American politics would be corrupted—indeed: democracy that is bought and sold. In the US, the juridical is entirely systematized by the ethos of the legal profession: legalism. It is the way in which (...) the law is supposed to be reasoned upon, deliberated upon, and decided upon. Although the Majority in Citizens expressed its reversal of law that limits corporate influence in American politics in legalese—the terminology within the system of legalism, the conservative Majority took an opportunity to establish conservative ideology as law—an ideology that subscribes to the equivocation between corporations and individuals, and, corporate spending with protected free-speech. (shrink)

The legalism of han fei-Tzu has affinities with much of modern political thought, Particularly in its denial of an objective morality. Because legalism is modernism unmoralized, It shows clearly some of the less savory implications of the truisms we accept. Han fei's ideas are interesting in their own right, But it is also interesting to see these ideas in a comparative setting, That we might gain a broader understanding of modern political thought, Both of its merits and its (...) limitations. (shrink)

This target article focuses on dynamics that arise in three typical ethically complex cases in which psychiatric consultations are requested by physicians: a dying patient refuses life-prolonging treatment, an uncooperative patient demands to be allowed to go outside and smoke, and an angry patient demands to be admitted to the hospital. The discussion canvasses what is at stake morally and clinically in each of these cases and explores clinician–patient interactions, dynamics in relationships between consulting physicians and consultant psychiatrists, patient transference, (...) and physician countertransference. The article defines legalism and countertransference and argues that an ethically and clinically important consequence of these phenomena for patients is distortion of clinicians' perceptions of patients' decisions and vulnerabilities. The discussion also describes how legalism and countertransference adversely affect how clinicians treat their psychiatrist colleagues. Finally, the article suggests how the effects of legalism and countertransference can be mitigated. (shrink)

Incisively and stylishly written, this book constitutes an open challenge to reconsider the fundamental question of the relationship of law to society.

Legalism is a popular—albeit quite inaccurate—designation of an intellectual current that gained considerable popularity in the latter half of the Warring States period (Zhanguo, 453–221 BCE). Legalists were political realists who sought to attain a “rich state with powerful army” and to ensure domestic stability in an age marked by intense inter- and intra-state competition. They believed that human beings—commoners and elites alike—will forever remain selfish and covetous of riches and fame, and one should not expect them to behave (...) morally. Rather, a viable sociopolitical system should allow individuals to pursue their selfish interests exclusively in ways that benefit the state, viz. agriculture and warfare; while a proper administrative system should allow officials to benefit from ranks and emoluments, but also prevent them from subverting the ruler’s power. Both systems are unconcerned with individual morality of the rulers and the ruled; rather they should be based on impersonal norms and standards: laws, administrative regulations, clearly defined rules of promotion and demotion, and the like. -/- Legalist thinkers contributed greatly to the formation of China’s empire both on the theoretical level and as political practitioners; and many of their ideas continued to be employed throughout China’s history. Yet their derisive views of moralizing discourse of their rivals, their haughty stance toward fellow intellectuals, and their pronouncedly anti-ministerial rhetoric all gained them immense dislike among the imperial literati. From China’s second imperial dynasty, the Han (206 BCE–220 CE) on, the prestige of Legalism declined; only a few texts associated with this current survived intact; and even in the modern period, notwithstanding sporadic outbursts of interest in Legalism, this current has not received adequate scholarly attention. (shrink)

The author analyzes fictions of legal positivist philosophy and their role in the scientific legitimation of modern law and political domination. The original function of legalist fictions was the establishment of legal science, which would be autonomous and independent of other social sciences and public morality. In the second half of the 20th century, legal positivist philosophy has nevertheless adopted the fiction of the just law as its scientific legitimation fiction and incorporated moral and political discourse into legal science, again.Legal (...) positivism and its critiques within the discourse of the sociology of law and critical legal science keep the image of a hierarchical and centralized legitimation of law. Paradoxically, current legal philosophy and theory searching for a universally valid legitimation scheme is full of many different legitimations and reveals their growing plurality and the impossibility of establishing one sovereign legitimation scheme in the current social, theoretical and political condition. (shrink)

This chapter focuses on one of the common fallacies in Western philosophy, 'legalistic mistake'. The use of “legal‐like” terms abounds outside the legal domain. But sometimes the users of these terms commit the fallacy Joel Feinberg called the legalistic mistake. On widening the use of such legal‐like terms, we must be cautious, for we might find ourselves guilty of making inferential mistakes or even proffering pure nonsense. The error, according to Feinberg, is committed by “one who, in stating a moral (...) question using a legal‐like term, uncritically imports the precision of that term in its strict legal sense, while excluding appeal to the kinds of criteria which alone can decide its use”. In “On Being 'Morally Speaking a Murderer’” Feinberg introduced the idea that, sometimes, using legal notions outside legal contexts may lead to a peculiar kind of fallacy he called the legalistic mistake. (shrink)

The article considers the nature of legalistic, or formal, conceptions of the rule of law, focusing particularly on the work of Joseph Raz and Albert Venn Dicey. It asks how such apparently narrow conceptions are generated, and how far they can resist including broader social claims. It concludes that the rationale behind legalistic conceptions compels them to address issues of poverty and the literacy of the law's subjects. However, legalistic conceptions of the rule of law can still avoid sliding into (...) the wider non‐legalistic models advanced by writers such as T. R. S. Allan. (shrink)

In this volume leading historians and anthropologists with an interest in law gather to analyse the nature and meaning of law in diverse societies. They start from the concept of legalism, taken from the anthropologist Lloyd Fallers, whose 1960s work on Africa engaged, unusually, with jurisprudence. The concept highlights appeal to categories and rules. The degree to which legalism in this sense informs people's lives varies within and between societies, and over time, but it can colour equally both (...) 'simple' and 'complex' law. Breaking with recent emphases on 'practice', nine specialist contributors explore, in a wide-ranging set of cases, the place of legalism in the workings of social life. The essays make obvious the need to question our parochial common sense where ideals of moral order at other times and places differ from those of modern North Atlantic governance. State-centred law, for instance, is far from a 'central case'. Legalism may be 'aspirational', connecting people to wider visions of morality; duty may be as prominent a theme as rights; and rulers from thirteenth-century England to sixteenth-century Burma appropriate, as much they impose, a vision of justice as consistency. The use of explicit categories and rules does not reduce to simple questions of power. The cases explored range from ancient Asia Minor to classical India, and from medieval England and France to Saharan oases and southern Arabia. In each case they assume no knowledge of the society or legal system discussed. The volume will appeal not only to historians and anthropologists with an interest in law, but to students of law engaged in legal theory, for the light it sheds on the strengths and limitations of abstract legal philosophy."--Publisher's description. (shrink)

The question of what makes a ‘law’ distinct from other kinds of rules and social norms – often called the project of ‘conceptual jurisprudence’ – gives rise to a classic debate in modern legal theory. The debate has historically centred on the competing Western views of (i) natural law theory and (ii) legal positivism. Meanwhile, the ancient Chinese school of thought known as ‘Legalism’ (法家) has remained an under-explored branch of Eastern philosophy, despite its many insights into the nature (...) of government and legal systems. This paper argues that Legalism, when interpreted as a system of conceptual jurisprudence, offers a genuine alternative to both of the dominant Western theories. It achieves this by invoking normative reasoning to conceptually distinguish ‘laws’ from other sorts of rules at the most fundamental level of analysis, but also by doing so without any necessary reference to notions of morality. This unique characteristic of Legalism is introduced in this paper as ‘form prudentialism’. (shrink)

‘Legalism’ is a term that has long been used to categorize a group of early Chinese philosophers including, but not limited to, Han Fei (Han Feizi), Shen Dao, Shen Buhai, and Shang Yang. However, the usefulness of this term has been contested for nearly as long. This essay has the goal of introducing the idea of ‘Legalism’ and laying out aspects of the political thought of Han Fei, the most prominent of these thinkers. In this essay, I first (...) lay out how the term Legalism could be useful and what would be necessary in order for it to serve that use. I then turn to an investigation of certain aspects of the most prominent Legalist philosopher, Han Fei, that is quite important for understanding his philosophy and situating him in the context of the early Chinese philosophical milieu. In particular, I focus on an analysis of Han Fei's conception of the Way (dao), arguing that features of his philosophy most often discussed, namely, his advocacy of law (fa), administrative techniques (shu), and positional power (shi), arise out of his conception of a cosmic Way. I then turn to Han Fei's understanding of the role of history, demonstrating how it differs radically from the views of his contemporaries, raising serious challenges to Confucian, Daoist, and Mohist conceptions of history. (shrink)

DIVA reader aimed at revitalizing left legal and political critique./div.

There is ample justification for characterizing imperial China as a "Confucian State" (or "Confucian Society") as many students of Chinese history do. Such characterization is justified by the fact that Confucianism had contributed much to shaping and sustaining the imperial system from the Han dynasty to the Ch'ing. But it should be pointed out that Legalism had also played a crucial part in the development of that system and that, insofar as the above-mentioned characterization ignores the Legalist role, it (...) is a misnomer. The purpose of the present article is to call attention to the Legalist contribution to autocratic government, to counterbalance the exclusive importance that has often been attached to Confucianism. For the sake of convenience, I shall use the term "Legalist" roughly in the same loose way as the term "Confucian" is used in "Confucian State." Only a few rather obvious, if not altogether superficial, points will be made, which, I hope, might lead to further discussions. (shrink)

'Community' and 'justice' recur in anthropological, historical, and legal scholarship, yet as concepts they are notoriously slippery. Historians and lawyers look to anthropologists as 'community specialists', but anthropologists often avoid the concept through circumlocution: although much used by historians, legal thinkers, and political philosophers, the term remains strikingly indeterminate and often morally overdetermined. 'Justice', meanwhile, is elusive, alternately invoked as the goal of contemporary political theorizing, and wrapped in obscure philosophical controversy. A conceptual knot emerges in much legal and political (...) thought between law, justice, and community, but theories abound, without any agreement over concepts.The contributors to this volume use empirical case studies to unpick threads of this knot. Local codes from Anglo-Saxon England, north Africa, and medieval Armenia indicate disjunctions between community boundaries and the subjects of local rules and categories; processes of justice from early modern Europe to eastern Tibet suggest new ways of conceptualizing the relationship between law and justice; and practices of exile that recur throughout the world illustrate contingent formulations of community. In the first book in the series, Legalism: Anthropology and History, law was addressed through a focus on local legal categories as conceptual tools. Here this approach is extended to the ideas and ideals of justice and community. Rigorous cross-cultural comparison allows the contributors to avoid normative assumptions, while opening new avenues of inquiry for lawyers, anthropologists, and historians alike. (shrink)

'Community' and 'justice' recur in anthropological, historical, and legal scholarship, yet as concepts they are notoriously slippery. Historians and lawyers look to anthropologists as 'community specialists', but anthropologists often avoid the concept through circumlocution: although much used by historians, legal thinkers, and political philosophers, the term remains strikingly indeterminate and often morally overdetermined. 'Justice', meanwhile, is elusive, alternately invoked as the goal of contemporary political theorizing, and wrapped in obscure philosophical controversy. A conceptual knot emerges in much legal and political (...) thought between law, justice, and community, but theories abound, without any agreement over concepts.The contributors to this volume use empirical case studies to unpick threads of this knot. Local codes from Anglo-Saxon England, north Africa, and medieval Armenia indicate disjunctions between community boundaries and the subjects of local rules and categories; processes of justice from early modern Europe to eastern Tibet suggest new ways of conceptualizing the relationship between law and justice; and practices of exile that recur throughout the world illustrate contingent formulations of community. In the first book in the series, Legalism: Anthropology and History, law was addressed through a focus on local legal categories as conceptual tools. Here this approach is extended to the ideas and ideals of justice and community. Rigorous cross-cultural comparison allows the contributors to avoid normative assumptions, while opening new avenues of inquiry for lawyers, anthropologists, and historians alike. (shrink)

The Legalist school, which played a progressive role in the history of our country, was a school of thought in direct opposition to the Confucian school. It appeared in the Spring and Autumn and Warring States periods and had its own particular economic basis and political conditions. The school which through the ages has worshiped Confucius and the chieftains of the opportunist line within our own Party have proceeded from their reactionary political needs to fabricate lies regarding the question of (...) the appearance of the Legalists and to cover over the basic differences between the two classes and lines represented by the Confucians and the Legalists. Therefore, we must uphold the Marxist theory of historical materialism and correctly analyze the economic and political sources of the Legalist school. (shrink)

The Legalists were a group of statesmen and writers in China (mainly fourth and third centuries BC) who advocated in their practice and writings the use of law as the principal instrument of government. They understood law in the Austinian sense of orders, stipulating punishments or rewards, issued by the ruler to his subjects. Emphasis was placed upon the fact that punishments should be severe and deterrent, that official should be accountable under the law for the correct performance of their (...) duties, that laws should be clear and certain, and that there should be a strict separation between law and morality, in the sense that law should take no account of moral desiderata but should itself furnish the sole source of what was right conduct. Although the great imperial codes from the T’ang to the Ch’ing (eighth to twentieth centuries) enshrined the basic values of Confucian orthodoxy, they were also strongly influenced, especially in their technical construction and the specification of officials’ duties, by Legalist doctrines. (shrink)

Organizational transgressions cause recurring scandals. Often disclosed by whistleblowers, they generate public outrage and force organizations to respond. Recent studies have tried to answer the question: “What happens after a transgression becomes publicly known?” They highlight organizational responses marked by recognition of the transgression, penance and reintegration of the organization. However, that research only deals with transgressions involving illegal organizational practices. This article broadens the field of study to include legal but unethical organizational practices. It is based on the case (...) study of a recent scandal: LuxLeaks (2010–2018). This scandal concerns tax avoidance practices that were advised by the international audit and consulting firm PwC to hundreds of companies and made public by whistleblowers. The case data result from cross-comparisons of several organizational (PwC) and governmental (Luxembourg) communication documents as well as parliamentary, judicial and press documents. The article’s results highlight a legalistic organizational response that is so far under-explored in the literature. This response is marked by a rhetoric of denial, reformism and self-victimization and by judicial retaliation against the whistleblowers. It reveals the paradoxes of “legalization” in contemporary organizations, and its role in the perpetuation of unethical corporate practices. (shrink)

Mainstream historians in recent decades have often treated formal categories and rules as something to be 'used' by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic errors and categories as an imposition by outside powers or by analysts, leaving a very thin notion of 'practice' as the stuff of social life. Philosophy of an older vintage, as well as the (...) work of scholars such as Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the traditional ground of modern Europe and North America. Not only are different kinds of rules and categories open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the Legalism series, this collection draws on common themes that run throughout the first two volumes: Legalism: Anthropology and History and Legalism: Community and Justice, consolidating them in a framework that suggests a new approach to rule-bound systems. (shrink)

The Rule of law often is considered to be a criterion for legal positivistic thinking. According to this maxim: can the Chinese Legalistic thinking of Shang Yang and Han Fei be considered as a sort of Legal Positivism? There are many positions shared by both, like the idea of a positive law or the binding character of the law despite of person and sympathies or even the concept of the law as a system. There is, however a important difference between (...) them: legal positivism can be best described as “rule of the law” whereas Legalism best fits the idea of “rule by the law”, since there were no secondary rules stating how the legislator had to make the law. On the other hand, the strongest approach to draw a parallel between both is the commonly shared concept of realism of the law as social construction. (shrink)

This essay is in the spirit of a friendly amendment. I have found Shklar's central arguments to be more compelling every time I have reread this book over the last twenty years. Nevertheless, I want to argue in this essay that in spite of Legalism's strengths, Shklar's core anthropological claim about the profession - more often asserted, rather than argued, throughout the book - that legalism, the attitudinal glue that binds lawyers professionally, consists of a commitment to the (...) morality of rule abidance - is flawed, not because it is wrong, but because it is underinclusive. While legalism consists of something like what she described, it is by no means only that... My second point, which I will take up very briefly toward the end of this essay, is that a fuller account of ideological legalism also casts the central normative question Shklar raised, regarding the appropriateness of legalism in international affairs, particularly in times and matters and questions of war, in a different light. If legalism consists of only a commitment to the morality of playing by the rules, then it does seem oddly inappropriate in the international arena. (shrink)

With self-determination as its implication, freedom can create room for such psychological mechanism as internalization to perform the function of transforming the external social regulation into self-regulation. For this transformation to be viable, however, subject needs to be formed and subsequently social regulation becomes redundant, thanks to the formation of subject. Freedom as a necessary condition for the subject formation and this transfiguration of social regulation is often neglected in favor of social order. Drawing on various intellectual resources, this article (...) explores the inner logic and consequence of Legalism, in its segregation of politics (social order) and morality. (shrink)

Prescriptive political and moral theories contain ideas about what human beings are like and about what, correspondingly, is good for them. Conceptions of human “nature” and corresponding human good enter into normative argument by way of support and justification. Of course, it is logically open for the ratiocinative traffic to run the other way. Strongly held convictions about the rightness or wrongness, goodness or badness, of certain social institutions or practices may help condition and shape one's responses to one or (...) another set of propositions about what people are like and what, in consequence, they have reason to value. (shrink)

This paper examines Judith Shklar’s Legalism in light of the paradox that emerges clearly from a law-based approach to international crises that ought to be evaluated on the basis of whether the judicial initiative—the cases examined are primarily drawn from ad hoc UN Security Council tribunals—promote, in Shklar’s words, “decent politics.” The question of whether this notion is exclusively related to liberalism, and whether it may run contrary to the role of defense counsel in such trials—deeply anchored in the (...) liberal tradition of the protection of individual liberty, and yet confronted to the politics of international criminal law and international relations, however theorized—is fundamental, as “decent politics” compete with the legalistic imperatives of the defense, and the liberal foundation of the legal systems from which UN trials have emerged. Legalism provides a theoretical thread to examine the emergence of international criminal trials as well as the relation between the universality of law and history and the politics of memory, which figure prominently as political phenomena in these trials, but which may run contrary to the liberalism inherent in the legalist form. (shrink)

With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalism—an idealistic belief that ...

“Legalism” is defined as requiring that all matters of legal regulation and controversy ought so far as possible to be conducted in accordance with predetermined rules of considerable generality and clarity. Thus there may be moral limits on governments which ban them from acting on the substantive moral merits of situations with which they have to deal. This is most important in public law, but also applies in private law, e.g., in cases involving property. Hume, Kant, and Hayek are (...) examined in respect of their case for legalism; Alexy and Finnis also reviewed. Autonomy is the foundation for legalism, and justifies “ethical positivism,” in T. Campbell's phrase. Critical legal studies (Unger, Kelman, Kennedy et al.) however challenge legalism's premises. But the “critical” arguments against reification merely raise, they do not settle, the issue about the politics of legalism and the desirability of legal dogmatics. With all faults, legalism is a prerequisite of free government. (shrink)

From total rejection to reluctant acceptance and eventually to full acceptance with new justifications, the Chinese attitude towards the public/private divide has undergone several stages in theory and practice. During the early stages of the People’s Republic of China, Chinese scholars of law and political science firmly rejected the divide between the public and the private as being a distinction made in bourgeois law that should be replaced by a new socialist legal system, which would acknowledge no such difference. Since (...) the start of reforms in the late 1970s, the newly ascendant private sector of the economy called for legal recognition of its status, but due to ideological constraints inherited from the pre-reform era, it was not easy to give meaning to the existence of the private sector. Debates were waged among Chinese scholars over the distinction between the public and the private for the purpose of recognizing private ownership. Eventually, the distinction was recognized. The Chinese case is obviously a very good example to show that such a distinction does play a role in shaping or improving a legal system. The emergence of “social law,” however, has blurred the demarcation between the two, calling for new theorization. The “publicization of private law” and “privatization of public law” have further strengthened the ambiguity with respect to the public/private divide. (shrink)

Writing only decades apart, Han Feizi (ca. 250 BCE) and Kautilya (ca. 300 BCE) were two great political thinkers who argued for strong leaders, king or emperor, to unify warring states and bring peace, who tried to show how a ruler controls his ministers as well as the populace, defended the need for spies and violence, and developed the key ideas needed to support the bureaucracies of the emerging and unified states of China and India respectively. Whereas both thinkers disliked (...) the new merchants, Han Feizi seems content with a traditional feudal economy, whereas Kautilya wanted to use the state to increase production and the wealth in the king's treasury. Kautilya also had much more extensive discussions of war and diplomacy. (shrink)