A theoretical and sociological exploration of the relationship between law and society, this book constructs an approach to law that integrates legal theory with sociological approaches to law. Law is generally understood to be a mirror of society--a reflection of its customs and morals--that functions to maintain social order. Focusing on this common understanding, the book conducts a survey of Western legal and social theories about law and its relationship within society, engaging in a theoretical and empirical critique of this (...) common understanding. (shrink)

This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called 'globalisation' take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to (...) be critically reviewed and extended to take account of other legal traditions and cultures. Written by the one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation. This is essential reading for all students of jurisprudence and legal theory. (shrink)

ABSTRACTThe aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law...

This chapter offers an overview of experimental legal philosophy with a special focus on questions in general jurisprudence, that part of legal philosophy that asks about the concept and nature of law. Much of the experimental general jurisprudence work has tended to follow the questions that have interested general jurisprudence scholars for decades, that is, questions about the relation between legal norms and moral norms. Wholesale criticism of experimental general jurisprudence is scant, (...) but, given existing debates about experimental philosophy generally, one can anticipate where disagreement is likely to occur. Outside of experimental general jurisprudence, there is plenty of vibrant discussion about how experimental results can enrich our understanding of various concepts that figure in everyday legal thought such as causation, intention, consent, or meaning. In the future, experimental legal philosophers should continue to consider the degree to which their project is purely descriptive or whether it is revisionary or pragmatic in its ambitions. Also, future work might consider whether to focus more attention on legal experts. (shrink)

Analytical jurisprudence often proceeds with two key assumptions: that all law is either contained in or traceable back to an authorizing law-state, and that states are stable and in full control of the borders of their legal systems. What would a general theory of law be like and do if these long-standing presumptions were loosened? The Unsteady State aims to assess the possibilities by enacting a relational approach to explanation of law, exploring law's relations to the environment, security, (...) and technology. The account provided here offers a rich and renewed perspective on the preconditions and continuity of legal order in systemic and non-systemic forms, and further supports the view that the state remains prominent yet is now less dominant in the normative lives of norm-subjects and as an object of legal theory. (shrink)

In this article, we propose a novel account of general jurisprudence by situating it within the broader project of metanormative inquiry. We begin by showing how general jurisprudence is parallel to another well-known part of that project, namely, metaethics. We then argue that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fits into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit (...) into reality. General jurisprudence is the part of metalegal inquiry that focuses on universal legal thought, talk, and reality. (shrink)

. “The Notebook Corner,” edited by Enrico Pattaro, makes its first appearance here as a new section of Ratio Juris. This new section can be described in a sense as an offshoot of the project for A Treatise of Legal Philosophy and General Jurisprudence, a work still in progress composed of five theoretical volumes and six historical ones. The theoretical volumes receive a brief presentation in the paper immediately below, with a specific focus on Volume 1, entitled The (...) Law and the Right: A Reappraisal of the Reality That Ought to Be. This volume is then discussed as well by Rosaria Conte and Cristiano Castelfronchi in the second paper of this “Notebook Corner”. (shrink)

A collection of the author's new and reprinted papers in general jurisprudence. Chapters: -/- Introduction: A Philosophy of Legal Philosophy -/- Law, As Such 1. The Concept of Law Revisited 2. Law as a Means 3. Custom and Convention at the Foundations of Law 4. Realism and the Sources of Law 5. Feminism in Jurisprudence -/- Law and Morality 6. The Germ of Justice 7. The Inseparability of Law and Morals 8. The Morality in Law 9. The (...) Role of a Judge 10. Should Law Improve Morality? -/- The Demands of Law 11. Hume on Allegiance 12. Associative Obligations and the State 13. The Forces of Law 14. The Duty to Govern. (shrink)

The first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is divided in two (...) parts. The theoretical part, consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes, accounts for the development of legal thought from ancient Greek times through the twentieth century. The entire set will be completed with an index. Volume 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics 2nd revised edition, edited by Fred D. Miller, Jr. and Carrie-Ann Biondi Volume 6 is the first of the Treatise’s historical volumes and is dedicated to the philosophers’ philosophy of law from ancient Greece to the 16th century. The volume thus begins with the dawning of legal philosophy in Greek and Roman philosophical thought and then covers the birth and development of European medieval legal philosophy, the influence of Judaism and the Islamic philosophers, the revival of Roman and Christian canon law, and the rise of scholastic philosophy in the late Middle Ages, which paved the way for early-modern Western legal philosophy. This second, revised edition comes with an entirely new chapter devoted to the later Scholastics and an epilogue on the legacy of ancient and medieval thought for modern legal philosophy, as well as with updated references and indexes. (shrink)

H.L.A. Hart described his classic book, The Concept of Law, as a work in «descriptive sociology», and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label «socio-legal positivism» reflects the fact that this article (...) grafts the insights and orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this reconstruction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today. (shrink)

Imbalance in analytical legal theory's approach to prima facie legal phenomena : re-balancing after imbalance : an incremental addition to analytical legal theory -- Legal officials, the rule of recognition, and international law -- The hierarchical view of legal system and non-state legality -- Meta-theoretical-evaluative motivations -- An inter-institutional theory -- An inter-institutional account of non-state legality -- Pathologies of legality : novel technologies and their implications for conceptions of legality : the consequences of re-socializing a descriptive-explanatory view of law.

A Treatise of Legal Philosophy and General Jurisprudence is the first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and (...) legal scholar at all levels. The work is divided in two parts. The theoretical part (published in 2005), consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes (Volumes 6-8 published in 2007; Volumes 9 and 10, published in 2009; Volume 11 published in 2011 and Volume 12 forthcoming in 2016), accounts for the development of legal thought from ancient Greek times through the twentieth century. Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World Volume 12 of A Treatise of Legal Philosophy and General Jurisprudence, titled Legal Philosophy in the Twentieth Century: The Civil-Law World, functions as a complement to Gerald Postema's volume 11 (titled Legal Philosophy in the Twentieth Century: The Common Law World), and it offers the first comprehensive account of the complex development that legal philosophy has undergone in continental Europe and Latin America since 1900. In this volume, leading international scholars from the different language areas making up the civil-law world give an account of the way legal philosophy has evolved in these areas in the 20th century, the outcome being an overall mosaic of civil-law legal philosophy in this arc of time. Further, specialists in the field describe the development that legal philosophy has undergone in the 20th century by focusing on three of its main subjects-namely, legal positivism, natural-law theory, and the theory of legal reasoning-and discussing the different conceptions that have been put forward under these labels. The layout of the volume is meant to frame historical analysis with a view to the contemporary theoretical debate, thus completing the Treatise in keeping with its overall methodological aim, namely, that of combining history and theory as a necessary means by which to provide a comprehensive account of jurisprudential thinking. (shrink)

General jurisprudence-that branch of legal philosophy concerned with the nature of law and adjudication-has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (...) (Oxford University Press, 2007). (shrink)

Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma’s recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur’s (...) practitioners to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma’s critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field’s future. (shrink)

Jurisprudence is the prudence of jus, law's consciousness and conscience. Throughout history, when thinkers wanted to contemplate the organisation of society or the relationship between authority and the subject, they turned to law. All great philosophers, from Plato to Hobbes, Kant, Hegel, Marx and Weber had either studied the law or had a deep understanding of legal operations. But jurisprudence is also the conscience of law, the exploration of law's justice and of an ideal law or equity at (...) the bar of which state law is always judged. Jurisprudence brings together 'is' and 'ought', the positive and the normative, law and justice. But after a long process of decay, legal theory is today characterised by cognitive and moral poverty. Jurisprudence has become restricted and academically peripheral, a guidebook to technocratic legalism and a legitimation of the existent. Critical jurisprudence returns to the classical tradition of a general philosophy of law and adopts a much wider concept of legality. It is concerned both with posited law and with the law of the law. All legal aspects of the economic, political, emotional and physical modes of production and reproduction of society are part of critical jurisprudence. This widening of scope allows a radical rethinking of the nature of rights, justice, sovereignty and judgement. A political philosophy of justice today must examine the political economy of law; transitions from Empire to nation; ideological and imaginary constructions through which we understand ourselves and relate to others; ways in which gender, race or sexuality create forms of identity that both discipline bodies and offer sites of resistance. Law's complicity with political oppression, violence and racism has to be faced before it is possible to speak of a new beginning for legal thought, which in turn is the necessary precondition for a theory of justice. Critical Jurisprudence offers an ethics of law against the nihilism of power and an aesthetics of existence for the melancholic lawyer. (shrink)

v. 1. Jurisprudence. The end of law -- v. 2. The nature of law -- v. 3. The scope and subject matter of law. Sources, forms, modes of growth -- v. 4. Application and enforcement of law. Analysis of general juristic conceptions -- v. 5. The system of law.

General aspects of jurisprudence -- Precursors of modern jurisprudence -- Natural law -- Transcendental idealism -- Utilitarianism -- Legal positivism -- Historical jurisprudence -- The sociological movement in jurisprudence -- Authority -- Scandinavian realism -- American realism -- Contemporary american jurisprudence -- Rights -- Law and morality -- Feminist jurisprudence.

General aspects of jurisprudence -- Precursors of modern jurisprudence -- Natural law -- Common law and statute -- Utilitarianism -- Punishment -- Legal positivism -- Authority -- American realism -- The nature of law -- Contemporary American jurisprudence and political philosophy -- Rights -- Law and morality.

Hart said that analytical jurisprudence is descriptive and general but did not draw an explicit distinction between conceptual questions that are in the main theoretical and others that are in the main practical. In Hart’s account, analytical jurisprudence searches for some kind of clarity about the idea of law and the other basic legal ideas as they occur in our ordinary experience. In the Postscript he explains that jurisprudence is the ‘theoretical or scientific study of law (...) as a social phenomenon’, which may, on occasion, but typically does not, rely on moral deliberation. It is to be contrasted to ‘practical’ questions as to how to live one’s life. I shall call this view ‘descriptivism’. It has been a very influential position in analytical jurisprudence and it is being defended by Hart’s followers even today. In this essay I raise some doubts about its coherence. First, I do not think Hart defended this view consistently —even though he did so in the Postscript. Second, I do not think that the position has been adequately defended, either by Hart or by his followers. There is still a great deal of ambiguity as to the precise position of jurisprudence between theoretical and practical reason.Resumen:Hart sostuvo que la jurisprudencia analítica es descriptiva y general pero no elaboró una distinción explícita entre las preguntas conceptuales que son principalmente teóricas y otras que son principalmente prácticas. En la explicación de Hart, la jurisprudencia analítica busca cierto tipo de claridad acerca de la noción de derecho y las demás ideas básicas tal cual ellas ocurren en nuestra experiencia ordinaria. En el Post Scriptum, él explica que la jurisprudencia es el ‘estudio teórico o científico del derecho como un fenómeno social’, el cual puede, en ocasiones, basarse en la deliberación moral, pero típicamente no lo hace. Esto puede contrastarse con las preguntas “prácticas” acerca de como las personas dirigen su propia vida. Llamo esta tesis “descriptivismo”. Esta ha sido una posición muy influyente en la jurisprudencia analítica y ha sido defendida por los seguidores de Hart hasta hoy. En este ensayo despierto dudas sobre su coherencia. Primero, no creo que Hart defendiera esta tesis de forma consistente. Segundo, no creo que la posición haya sido defendida de forma adecuada, ni por Hart ni por sus seguidores. Aún existe una gran ambigüedad acerca de la posición exacta de la jurisprudencia entre la razón teórica y la razón práctica. (shrink)

A textbook written mainly for final year law students taking Jurisprudence at an African university, but that would also be of use to those in a political philosophy course. It includes primary sources from both the Western and African philosophical traditions, and addresses these central questions: what is the nature of law?; how should judges interpret the law?; is it possible for judges to be objective when they adjudicate?; how could the law justly allocate liberty and property?; who is (...) owed duties of justice or moral treatment more generally?; who is obligated to advance justice, say, by aiding others?; how should wrongful harm be compensated?; why and when should lawbreakers be punished? (shrink)

This article engages legal positivism conceived of as a political project rather than as a descriptive account of law. Jeremy Waldron’s ‘democratic jurisprudence’ represents such a politicized legal positivism—a normative argument for legal positivism rather than a non-normative claim that legal positivism is true. Unsurprisingly, the essential institutional elements of this democratic jurisprudence turn out to be the familiar features of classical legal positivism, and the case Waldron makes against judicial review grows out of his overarching political position. (...) But, consequently, if there are reasons to doubt the strength of Waldron’s case against judicial review, there are surely reasons to doubt the normative bases of his case for positivism, and in turn, descriptive or conceptual positivism more generally. This article investigates this claim, noting that Waldron’s political case for positivism is based on Kantian notions about moral autonomy given circumstances of moral disagreement, but that Waldron’s conclusions about the role of judges undermine both these Kantian foundations and the aims of democratic jurisprudence. While Waldron’s arguments revive a tradition of political positivism that goes back to Bentham, engagement with those arguments suggests that legal positivism ultimately must embrace a radical democratic form of anti-constitutionalism. (shrink)

Nowadays, there is a quite considerable amount of literature on the use of analogy or more generally of inferences by parallel reasoning in contemporary legal reasoning and particularly so within Common Law. These studies are often motivated by research in artificial intelligence seeking to develop suitable software-support for legal reasoning. Recently, Rahman et al. developed a dialogical approach in the framework of Constructive Type Theory to what in Islamic Jurisprudence was called qiyās or correlational inferences. In their last chapter (...) the authors suggested that such an approach contributes to the study of patterns of reasoning by precedent cases within contemporary Common Law. In the present paper we will further motivate the deployment of the dialogical framework developed in Rahman et al. within Civil and Common Law. After a presentation of Scott Brewer’s take on analogy within Common Law, that has striking structural similarities to reasoning by precedent case rooted in ratio legis, we will illustrate the implementation of the framework with a brief discussion of some cases of legal reasoning based on Spanish Civil Law but where the accent is put in the emerging ruling rather than in the existing of a case in Common Law. Moreover, quite surprisingly, the case under study suggests that even cases of Law interpretation fit the argumentation pattern of qiyās al-‘illa. A caveat: in the present paper we will focus mainly in discussing the dynamics of the meaning constitution involved rather than in setting the rules of the underlying dialogical framework, the latter is the subject of a follow-up paper. (shrink)

The foundations of law. The digest title, De diversis regulis iuris antiqui, and the general principles of law, by P. Stein. Equity in Chinese customary law, by W. Y. Tsao. Prolegomena to the theory and history of Jewish law, by H. Cohn. Juridical evolution and equity, by J.P. Brutau. Reflections on the sources of the law, by P. Lepaulle. The true nature and province of jurisprudence from the viewpoint of Indian philosophy, by M.J. Sethna. On the functions and (...) aims of the state, by G. Del Veccchio.--Concepts of jurisprudence. Legal language and reality, by K. Olivecrona. The logic of the reasonable as differentiated from the logic of the rational (human reason in the making and the interpretation of the law) by L. Recaséns-Siches. Some refections on status and freedom, by W.G. Friedmann. Law and power and their correlation, by M. Reale. The notion of canonical auctoritas with respect to statute, custom and usage, by B.F. Brown. Two theories of "the institution," by J. Stone. (shrink)

Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general philosophy; (...) analytic jurisprudence studies only time-­‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-­‐slice legal system is incapable of explaining the normativity of law. Postema recommends an approach to jurisprudence based on sociability with other disciplines, including its own history and general philosophy; he also recommends an approach grounded in synechism – Peirce’s label for the attempt to find continuities between seemingly-­‐discontinuous phenomena. My comments are largely sympathetic to Postema. I show that his argument about the normativity of law makes the most sense if we embed it in a “meaning as use” theory of legal language and its conceptual content. I am more skeptical of synechism, which on its face rejects a perfectly valid and valuable historiography focused on discontinuity – the kind of history written by Kuhn, Foucault, and Marx. I show that Peirce’s argument for synechism fails, whereas Postema’s version of synechism broadens the notion of continuity to include what might ordinarily be thought of as discontinuities. On the one hand, that rescues Postema from the charge of ruling out valid approaches to history on a priori grounds; on the other, it makes Postema’s version of synechism less distinctive than he supposes. (shrink)

This paper sets out a view of a General Jurisprudence that is needed to underpin the institutionalised discipline of law as it becomes more cosmopolitan in the context of “globalisation”, and considers its implications. Part I restates a position on the mission and nature of the discipline of law and of the role of jurisprudence, as its theoretical part, in contributing to the health of the discipline. Part II clarifies some questions that have been raised about this (...) conception of General Jurisprudence: (i) the implications of “globalisation”; (ii) The meaning of “General Jurisprudence” in this context; (iii) The relationship between Jurisprudence, Legal Philosophy, and social scientific approaches to law; and (iv) The significance of the idea of “non-state law”. Part III illustrates through concrete examples some implications for possible agendas and issues suggested by this model within the areas roughly characterised as analytical, normative, empirical, and critical jurisprudence, including critical analysis of the assumptions and presuppositions typically underpinning mainstream work in fields such ascomparative law, public international law, religious law, and socio-legal studies. (shrink)

Understood one way, the branch of contemporary philosophical ethics that goes by the label “metaethics” concerns certain second-order questions about ethics—questions not in ethics, but rather ones about our thought and talk about ethics, and how the ethical facts (insofar as there are any) fit into reality. Analogously, the branch of contemporary philosophy of law that is often called “general jurisprudence” deals with certain second-order questions about law—questions not in the law, but rather ones about our thought and (...) talk about the law, and how legal facts (insofar as there are any) fit into reality. Put more roughly (and using an alternative spatial metaphor), metaethics concerns a range of foundational questions about ethics, whereas general jurisprudence concerns analogous questions about law. As these characterizations suggest, the two sub-disciplines have much in common, and could be thought to run parallel to each other. Yet, the connections between the two are currently mostly ignored by philosophers, or at least under-scrutinized. The new essays collected in this volume are aimed at changing this state of affairs. The volume collects together works by metaethicists and legal philosophers that address a number of issues that are of common interest, with the goal of accomplishing a new rapprochement between the two sub-disciplines. (shrink)

Ancient allures the postmodern social subject trapped in the strangeness of time—the time after the end of history. For that time-beaten subject ancient is the unconscious of coherence, predictability, and certainty. Or perhaps that ancient is a glory fled. Whatsoever, ancient is generally sacralized—irrespective of the type of socialization that happened in the past—and journey to the ancient is often deemed to be a pilgrimage. When ideas of the ancient in their individuality and totality inter alia become the natural intellectual (...) resource for rebuilding postmodern societies, discriminative ingenuity becomes an essential faculty. Any uncritical reverence of the ancient becomes antithetical to modern social and political values, inviting the risk of reproducing inequities of the past. This article problematizes such uncritical dependence on the ancient using Ancient Indian Jurisprudence, which has been looked up on as a repository of moral and legal values, as a case in point. It meditates from the experiences and perspectives of an imaginary ‘teaching subject’ on the many pitfalls and possibilities of the ancient as it builds a framework of teaching and learning, and a representative scheme of evaluation for Ancient Indian Jurisprudence. (shrink)

This paper provides a taxonomy of the different kinds of theory that may be offered of an area of law. We distinguish two basic types of philosophical accounts in special jurisprudence: nonnormative accounts and normative accounts. Section II explains the two central subspecies of nonnormative accounts of areas of law: (i) conceptual and ontological theories and (ii) reason-tracking causal theories. Section III explores normative theories of areas of law. Normative accounts subdivide into detached and committed normative accounts. Detached or (...) committed normative accounts can be subdivided further into the following cross-cutting categories: (i) pro tanto or all-things-considered, (ii) hyper-reformist or practice-dependent, (iii) taxonomical or substantive. Section IV shows that our taxonomy does not presume a prior commitment to any particular school in general jurisprudence. This paper clarifies methodological confusion that exists in theorizing about areas of law, and contributes to the subfield of thinking generally about special jurisprudence. (shrink)

The first part of this article contains (i) considerations as to the relationship between jurisprudence and legal dogmatics, legal philosophy, and sociology of law; (ii) considerations about the status of jurisprudence both as a meta‐ and an object‐theory. These lead to the suggestion that jurisprudence should be defined as a general juristic theory of law and legal science. In the second part, the character and elements of this definition are explained systematically. The article's main thesis is (...) that jurisprudence is not distinguished from legal philosophy and sociology of law by its subject or its method, but by the specifically juristic research aspect or perspective it is based upon. (shrink)

It is generally assumed, without argument, that legal theory, legal philosophy, philosophy of law, and jurisprudence all mean the same thing. This paper rejects that assumption, and in particular the assumption that jurisprudence is the same thing as legal philosophy. This assumption has recently been challenged by Roger Cotterrell in his article “Why Jurisprudence Is Not Legal Philosophy,” and I seek to build on his arguments by adding insights found in the work of Stanley Fish.

In this article, I address general jurisprudence's ‘dirty little secret' or its apparent tension with normative conceptions of democracy. I argue that this tension is not coincidental, but a histor...

This book is a sophisticated, detailed, and original examination of the main ideas that have dominated Anglo-American legal philosophy since the Second World War. The author probes such themes as: whether there can be right answers to all disputed law cases; how laws and other rules impact on the practical rationality of actors subject to their authority; whether general principles justifying the law must themselves be thought of as part of the law binding on legal actors; and the possibility (...) of an interpretivist jurisprudence that is continuous with law practice in a given culture. (shrink)

In a series of powerful and challenging articles emerging since the mid-1990s, Brian Leiter has argued that certain theoretical strains in contemporary legal philosophy are ‘epistemologically bankrupt’, in virtue of their reliance on misguided argumentative devices: analysing concepts, such as the concepts of law and of authority; and doing so by appealing to intuitions regarding the correct way to understand the concepts in question. In response to this state of affairs, Leiter advocates that jurisprudence ought to attempt to catch-up (...) with ‘naturalistic’ developments which have influenced the direction of other branches of philosophy – such as epistemology, philosophy of mind, and moral philosophy – in the last few decades. This article offers a critical analysis of some of Leiter’s proposals for what Jurisprudence should become, in light of his views on the relevance of naturalism for this discipline. (shrink)

This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms (...) of legitimation to the rule of law. Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism. (shrink)