"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

The papers selected for this volume offer a panorama of problems and methods at the intersection of legal theory and the humanities. The issues addressed include the role of the emotions and the imagination in legal reasoning, and the protection of the diversity of voices and perspective in the name of community. The articles balance renewed calls to humanise legal theory with those that analyse and explore the relevance of specific domains of the humanities - (...) such as literature, architecture, music, painting, drawing and film - for law. (shrink)

The bumpy road to institutionalism : Schmitt's way-out of decisionism -- Exploring Schmitt's institutionalism : institutions and normality -- Institutionalist decisionism : law as the shelter of society -- Institution and identity : reassessing Schmitt's political theory -- Schmitt vs. Kelsen : the social ontology of legal life -- Schmitt vs. Hauriou : the politicization of institutionalism -- Schmitt vs. Romano : institutionalism without pluralism? -- Schmitt vs. Mortati : the concretization of the concrete order -- The impossibility (...) of legal indeterminacy -- The inconceivability of legal pluralism. (shrink)

This collection brings together the most important and influential papers theorising the changing relationship between law and science. The articles span historical overviews of the attempts by legal scholars to model legal science on scientific methodology, and the efforts by legal philosophers scrutinising the claims made on behalf of genetics and neuroscience as to their implications for law and legal concepts. The volume strikes a balance between those that seek to protect law's autonomy against the perceived (...) unwelcome inroads of science, and those that seek to shape and change law by incorporating the latest scientific developments. (shrink)

As many disciplines in the humanities have experienced a focus on culture's impact in recent decades, questions surrounding the significance of media such as writing, print, and computer networks have become increasingly relevant. This book seeks to demonstrate that a media and cultural theory perspective can also be highly productive for legal theory. Thomas Vesting approaches law as an artificial and constructive element within culture and emphasizes the many possibilities that varied forms of media have opened to (...) law, from oral history through to scripture, print and modern day digital networks. While providing historical examples for these theoretical assumptions, the connections between media and law are reconstructed in a practical way and with an eye toward the future. The book closes with an analysis of our present age as a network culture and discusses how this metaphorical framework can be of use in thinking about issues such as constitutionalism, human rights, the state, democracy and education. 'Legal Theory and the Media of Law' will be of great interest to legal, cultural and media theorists as well as academics of politics, sociology and philosophy" -- Back cover. (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)

Challenges to Legal Theory offers the reader a fascinating journey though a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that the field of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection (...) of essays, published in Spanish, in honour of Professor José Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience. (shrink)

I argue that disputes within constitutional theory about whether recent supreme court decisions exceed the scope of legitimate judicial review and disputes within legal theory about the nature and determinacy of law are best seen and assessed as disputes over the nature of legal interpretation. I criticize the interpretive assumptions on which these disputes generally depend and defend a theory of interpretation which tends to vindicate the determinacy of law even in hard cases and the (...) style of recent court decisions which many critics find troublesome. (shrink)

The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research (...) from an instrumentalist perspective, for both place the concept institution in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic. (shrink)

Introduction -- Defamation Criteria: Fact or Value? -- The Elusive Distinction between Fact and Opinion -- Defamation and Freedom of Expression -- Conclusion -- 10 Conclusion: A Unifying Prescription -- Introduction -- Socialist Positivism -- Critical Legal Positivism -- Feminist Positivism -- Alternative Dispute Resolution -- Conclusion -- Bibliography -- Index.

This chapter contains section titled: Historical Background An Overview The Indeterminacy Thesis Critical Legal Theory and Social Theory The Critique of the Public/Private Distinction Policy “Implications” The Critique of Rights Critical Feminist Theory and Critical Race Theory The Legacy References.

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, (...) patterning, perspective, and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory. (shrink)

Critical Legal Theory has conventionally been traced to the social, political, and philosophical movements of the 1960s and, before that, to the early-twentieth-century ‘realist’ critique of modern jurisprudence. In truth, however, its origins go back to classical and pre-modern thought, and to their acknowledgement of the centrality of law in attempts to conceive of the good life, or the just polity—a centrality that is, moreover, also discernible in the recent gravitation of a number of contemporary philosophers and theorists (...) towards law. Against the ‘restricted’ and ‘conservative’ character of modern jurisprudence, Critical Legal Theory constitutes a return to this more general interest in law and legality. Exceeding the limits of jurisprudence, it has, moreover, drawn upon the most ancient and most contemporary traditions of critical thought in order to pursue new ways of understanding, living, and imagining the law. Critical Legal Theory is now an established—if heterogeneous and controversial—field of study, represented by numerous international journals, regional organizations, and global conferences. As the field continues to flourish as never before, this new title in Routledge’s Major Works series, Critical Concepts in Law, meets the need for an authoritative reference work to make sense of a rapidly growing and ever more complex corpus of literature. Indeed, it is a landmark collection of Critical Legal Theory’s principal sources, orientations, movements, and themes. The first volume in the collection illuminates the foundations of Critical Legal Theory in contemporary continental thought, as well as providing an account of its institutional history. Volume II, meanwhile, examines the ways in which Critical Legal Theory has addressed and problematized conventional jurisprudential ideas about law, drawing upon the insights of philosophy, as well as other disciplines. Volume III assembles the best and most influential research to provide an overview of the movements that characterize the field. The scholarship assembled in the final volume brings together the key work to explore a range of substantial themes with which Critical Legal Theorists have engaged. Supplemented with a full index and comprehensive introductions, newly written by the editors, which situate the collected material in the context of more general theoretical traditions, as well as in critical relation to jurisprudence, _Critical Legal Theory_ is destined to be valued by scholars, students, and researchers as a vital resource. (shrink)

When laws or legal principles mention mental states such as intentions to form a contract, knowledge of risk, or purposely causing a death, what parts of the brain are they speaking about? We argue here that these principles are tacitly directed at our prefrontal executive processes. Our current best theories of consciousness portray it as a workspace in which executive processes operate, but what is important to the law is what is done with the workspace content rather than the (...) content itself. This makes executive processes more important to the law than consciousness, since they are responsible for channeling conscious decision-making into intentions and actions, or inhibiting action.We provide a summary of the current state of our knowledge about executive processes, which consists primarily of information about which portions of the prefrontal lobes perform which executive processes. Then we describe several examples in which legal principles can be understood as tacitly singling out executive processes, including principles regarding defendants’ intentions or plans to commit crimes and their awareness that certain facts are the case, as well as excusatory principles which result in lesser responsibility for those who are juveniles, mentally ill, sleepwalking, hypnotized, or who suffer from psychopathy. (shrink)

This new book argues that at the core of legal philosophy’s principal debates there is essentially one issue judicial impartiality. Keeping this issue to the forefront,Raban’s approach sheds much light on many difficult and seemingly perplexing jurisprudential debates. Modern Legal Theory and Judicial Impartiality.

The Legal Theory Lexicon series usually explicates some concept in legal theory, jurisprudence, or philosophy of law. But what are those fields and how do they relate to each other? Is "jurisprudence" a synonym for "philosophy of law" or are these two overlapping but distinct fields? Is "legal theory" broader or narrower than jurisprudence? And why should we care about this terminology? As always, this entry in the Legal Theory Lexicon series is (...) aimed at law students, especially first-year law students with an interest in legal theory. (shrink)

The concept of law is not a theorist's invention but one that people use every day. Thus one measure of the adequacy of a theory of law is its degree of fidelity to the concept as it is understood by those who use it. That means as far as possible. There are important truisms about the law that have an evaluative cast. The theorist has either to say what would make those evaluative truisms true or to defend her choice (...) to dismiss them as false of law or not of the essence of law. Thus the legal theorist must give an account of the truth grounds of the more central evaluative truisms about law. This account is a theory of legitimacy. It will contain framing judgments that state logical relations between descriptive judgments and directly evaluative judgments. Framing judgments are not directly evaluative, nor do they entail directly evaluative judgments, but they are nonetheless moral judgments. Therefore, an adequate theory of law must make (some) moral judgments. This means that an adequate theory of law has to take a stand on certain (but not all) contested issues in political philosophy. Legal theory is thus a branch of political philosophy. Moreover, one cannot be a moral-aim functionalist about legal institutions without compromising one's positivism about legal norms. (shrink)

This article aims at linking empirical research to legal theories, in a way that could enhance the benefits of this synergy. Jurisprudence, until recently the usual term for theoretical approaches to law, is now often replaced by the term legal theory. Difference between legal theory and empirical research is reflected in their consideration of subject matters, aims, and methods of research. However, there also exist commonalities between the two, i.e. both aim at comprehending law and (...) legal systems. While legal theory uses philosophical tools, its subject matter still remains a social phenomenon, for social ends. And since empirical research is a means to gather information about law, it could act as a prime source of information for legal theory. While empirical research has its own end to follow, what is missing is, attention to some legal theory, not just general legal theory, but which can also critique philosophical discourses to legality. (shrink)

This article aims to contribute to the question of how to conceptualise the relationship between theory and practice in feminist scholarship in law. It looks in detail at the implications of different issues raised in a recent debate between Anne Bottomley and Ngaire Naffine on the existence of a “legal feminist orthodoxy”. I critique the dominance of ethics over politics and join Bottomley in her attack upon “the ethics of respect for the other”, albeit from a different position. (...) I then look at the ways in which the problem of “essentialism” is being rethought from a feminist perspective. (shrink)

It is argued that accepting that there are human rights, or that there are categorically binding requirements of any kind on action, logically requires accepting the PGC (Principle of Generic Consistency) as the supreme criterion of practical reasonableness.Consequently, all legal systems that recognise human rights (hence, the English legal system), all who view law as a matter of obligation, and all who consider that there are categorically binding requirements on action, must take the PGC to be a necessary (...) criterion of legal validity. Conventions on human rights must, as conventions on human rights, be interpreted to conform with the PGC. (shrink)

The authors investigate MacCormick and Weinberger's claim that the Institutional Theory of Law provides a conceptual framework for the study of legal phenomena from a socio-legal point of view. They evaluate this claim by confronting both the Institutional Theory of Law and Weinberger's theory of action with two approaches in socio-legal theory, i.e. the instrumentalist and the constitutive approach. The conclusion is that the Institutional Theory of Law lends itself to empirical research (...) from an instrumentalist perspective, for both place the concept `institution' in the context of law. Weinberger's theory of action may provide a basis for empirical research from a constitutive perspective. The authors make some suggestions for refinement of Weinberger's theory of action in order that the relation between institutions and action can be labeled dynamic. (shrink)

The aim of the paper is that of putting into question the dichotomy between fact-judgments and value judgments in the legal domain, with its epistemological presuppositions (descriptivist image of knowledge) and its methodological implications for legal knowledge (value freedom principle and neutrality thesis). The basic question that I will try to answer is whether and on what conditions strong ethical value-judgments belong within legal knowledge. I criticize the traditional positivist positions that have fully accepted the value-freedom principle (...) and value-neutrality thesis, but I also submit to critical scrutiny the new post-positivist views, that, even if they show interesting conceptual developments on the matter, end up, nevertheless, by presupposing the same epistemological image, while I call descriptivism. I stress that only by giving up descriptivism and accepting constructivism as a general image of knowledge is it possible to see the problem of value-ladenness of legal knowledge in a new light. On the basis of the constructivist image, I present two theses: firstly, at a much broader epistemological level, I advance the minimalist thesis on value-judgments, which simply removes the general ban on treating values as present within knowledge; secondly, I advance the strong thesis on legal value-judgments, which consists in arguing for the necessary presence of ethical value-judgments in legal knowledge. I draw, in the end, some important implications from acceptance of the strong thesis. One of these implications is a new distinction that replaces the traditional distinction between fact-judgments and value judgments, namely, the distinction between value-judgments exhibiting a cognitive function and value-judgments exhibiting a creative function. (shrink)

Contains an integration of methods to be used for teaching and learning of legal theory. The text examines the uses of theory in the Australian legal environment by demonstrating how certain theories are explicitly or implicitly used by the courts to frame judgements.

This book of readings was designed for an introductory course in the theory of modern, Western law. The materials mine the depths of history, philosophy, politics, & ethics to bring to view a certain story of the present, past & future condition of modern Western legal theory, namely that "modern" legal theory is reaching its end with the new millennium.

The aim of the paper is that of putting intoquestion the dichotomy between fact-judgments andvalue judgments in the legal domain, with its epistemologicalpresuppositions (descriptivist image of knowledge) andits methodological implications for legal knowledge (valuefreedom principle and neutrality thesis). The basicquestion that I will try to answer is whether and on whatconditions strong ethical value-judgments belong withinlegal knowledge.I criticize the traditional positivist positionsthat have fully accepted the value-freedom principle andvalue-neutrality thesis, but I also submit to critical scrutinythe new post-positivist (...) views, that, even if they showinteresting conceptual developments on the matter, end up,nevertheless, by presupposing the same epistemologicalimage, while I call descriptivism. I stress that only by giving updescriptivism and accepting constructivism as a generalimage of knowledge is it possible to see the problem ofvalue-ladenness of legal knowledge in a new light.On the basis of the constructivist image, I present two theses:firstly, at a much broader epistemological level, I advance theminimalist thesis on value-judgments, which simply removes thegeneral ban on treating values as present withinknowledge; secondly, I advance the strong thesis on legalvalue-judgments, which consists in arguing for thenecessary presence of ethical value-judgments in legal knowledge.I draw, in the end, some important implications from acceptanceof the strong thesis. One of these implications isa new distinction that replaces the traditional distinctionbetween fact-judgments and value judgments, namely, thedistinction between value-judgments exhibiting a cognitivefunction and value-judgments exhibiting a creativefunction. (shrink)

Expropriation is a hotly debated issue in international investment law. This is the first study to provide a detailed analysis of its norm-theoretical dimension, setting out the theoretical foundations underlying its understanding in contemporary legal scholarship and practice. Jörg Kammerhofer combines a doctrinal discussion with a theoretical analysis of the structure of the law in this area, undertaking a novel approach that critically re-evaluates existing case-law and writings. His approach critiques the arguments for a single expropriation norm based on (...) custom, interpretation and arbitral precedents within international investment law, drawing also on generalist international legal thought, to show that both cosmopolitan and sovereigntist arguments are largely political, not legal. This innovative work will help scholars to understand the application of theory to investment law and help specialists in the field to improve their arguments. (shrink)

Constitutional adjudication straddles law and politics, legal and political theory. Referring to legal controversies in Canada (free expression), Ireland (sexual morality) and Italy (religion), this book examines how constitutional judgements rely upon unarticulated political commitments. This interaction between "law" and "morality" allows us to escape the dichotomy of natural law versus positivism in a time when judges increasingly act as moral guardians.