legal_realism   28

(107) NOW Published: How Hume
How Hume and Kant Reconstruct Natural Law: Justifying Strict Objectivity  without Debating Moral Realism, Clarendon Press (2016)
Front matter including both overview TOC and very detailed TOC plus introductory chapter -- He explains in the intro how both Hume and Kant (via Rousseau) pursued "moral constructivist" approaches using a (modified) "natural law" framework - after Hume had successfully attacked weaknesses in traditional approach to natural law. Notes that "justice" traditionally one of the 2 branches of moral philosophy (the other ethics). He's especially concerned with failure of "business ethics " as cause of financial crisis and Great Recession - but "business ethics" meaningless without a framework of "Justice." His target audience includes lawyers and legal/jurisprudence students and scholars - he thinks legal positivism and legal realism has run out of steam. He returns to accountancy standards in final chapter. -- pdf is the same material as kindle sample -- downloaded via iPhone to DBOX
books  legal_system  constructivism  morality-objective  justice  legal_theory  norms  accountability  legal_realism  18thC  norms-business  downloaded  moral_sentiments  moral_economy  jurisprudence  morality-conventional  legal_positivism  accounting  moral_realism  moral_psychology  Hume  kindle-available  natural_law  moral_philosophy  morality  Kant 
july 2016 by dunnettreader
Brian Z. Tamanaha - Legal Realism in Context :: SSRN in Elizabeth Mertz, ed., New Legal Realism, Vol. 1 (Cambridge UP, 2015 Forthcoming)
“We are all realists now,” it is frequently said, yet what legal realism was about remains vigorously debated by legal theorists and historians. The debate continues because the jurists we think of as core legal realists were not members of a group. Karl Llewellyn said this multiple times in his famous essay detailing realism. (..) Contemporary scholars who make assertions about what the legal realists stood for often fail to account for these passages. Legal realism.. is best understood ... in terms of 3 overlapping complexes of ideas that emerged in the late 19thC and had become widespread by the time of Llewellyn’s article. [(1)] that society was changing rapidly while law, understood as a means to achieve social ends, lagged badly behind, producing an urgent need for legal reform. [(2)] the growing refrain among legal academics that newly developing social sciences should be applied to enhance an understanding of the actual facts surrounding law. [(3)] a vocal backlash against judges for impeding reform, including charges that they were importing class bias into their legal decisions, prompting a broader acknowledgement that the background social attitudes of judges play a role in their decisions. These three themes were interpenetrating: the popular dissatisfaction with the failings of law was manifested in criticism of courts, and resort to social science was the favored academic solution. (..) Realism characterized the new modern age of thinking about law, and it ran much earlier and more broadly than is now commonly recognized. -- PDF File: 47 -- Keywords: Legal history, Jurisprudence, law and the humanities, law and the social sciences
chapter  SSRN  intellectual_history  intellectual_history-distorted  19thC  20thC  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  legal_history  social_sciences  legal_realism  legal_reform  change-social  change-intellectual 
october 2015 by dunnettreader
Brian Z. Tamanaha - The Third Pillar of Jurisprudence: Social Legal Theory :: SSRN - William & Mary Law Review, Vol. 56, 2015
Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism. -- Pages in PDF File: 44 -- Keywords: Jurisprudence, legal philosophy, law and society, legal realism, legal development, legal history
article  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  positivism-legal  natural_law  legal_realism  legal_history  sociology_of_law  social_order  social_theory  change-social  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  Montesquieu  pragmatism  downloaded 
october 2015 by dunnettreader
Brian Leiter, Michael Sevel - "Philosophy of Law" -- ENCYCLOPAEDIA BRITANNICA, 2015 :: SSRN
Michael Sevel, University of Sydney - Faculty of Law -- A brief and general introduction to the philosophy of law. The article includes a history of the philosophy of law from Ancient Greece to the present, and a discussion of the primary questions and arguments of the field.-- Pages in PDF File: 29 -- Keywords: Jurisprudence, philosophy of law, legal positivism, natural law theory, legal realism -- downloaded pdf to Note
philosophy_of_law  intellectual_history  jurisprudence  legal_history  legal_realism  natural_law  positivism-legal  downloaded 
october 2015 by dunnettreader
David Luban - Time-Mindedness and Jurisprudence: A Commentary on Postema's "Jurisprudence, the Sociable Science" | Virginia Law Review - 101 Va. L. Rev. 903 (2015)
Postema offers two general programmatic suggestions for jurisprudence besides greater historical consciousness: sociability and synechism. Sociability, has two dimensions. First, it means interdisciplinarity—a continual dialogue with the study of legal phenomena by the sciences, humanities, and even theology. Second, it means embedding jurisprudence in general philosophy, ... [Sellars]: “not only ‘cabbages and kings’, but numbers and duties, possibilities and finger snaps, aesthetic experience and death.” Synechism is a less familiar idea, drawn from the philosophy of C.S. Peirce. It is the commitment to seek continuity among phenomena. Peirce was metaphysically committed to the existence of actual continua everywhere in nature, history, and human psychology. So synechism will impose a certain demand on all systematic studies, namely discerning those continua.(..) a certain kind of historiography: The historian’s job is to unearth continuities between past and present rather than studying ruptures. This, it seems to me, is a contestable commitment that rules out a great deal of important historical work. Peirce understood synechism to imply that ideas are intrinsically temporal and historical phenomena. Although Postema does not endorse this general thesis, he does argue for a special case of it, namely that law is “intrinsically temporal.” This conclusion is central to his argument against the possibility of time-slice legal systems. It, too, is contestable; but, I shall suggest, Postema can reach his conclusion on grounds other than synechism, and I agree with him about law’s intrinsic temporality. -- downloaded pdf to Note
article  philosophy_of_law  pragmatism  historiography  historical_change  jurisprudence  legal_theory  legal_system  analytical_philosophy  legal_history  continuity  change-social  change-intellectual  intellectual_history  Peirce  social_sciences  legal_culture  legal_realism  philosophy_of_history  downloaded 
july 2015 by dunnettreader
Brian Z. Tamanaha - What is Law? :: SSRN - Jan 2015
Brian Z. Tamanaha -- Washington University in St. Louis Legal Studies Research Paper No. 15-01-01 -- Theorists who tackle “What is law?” usually acknowledge the difficulty of the question, then, with hardly a pause, launch into their proposed answer. Instead, focusing on three main categories of concepts of law, I examine in detail why previous attempts have failed to achieve a consensus. Several factors have contributed. One source of disagreement involves clashes among intuitions about law. Further problems are created by the narrowness of functional analysis, on which nearly all concepts of law are based. Confusion also arises because law shares basic characteristics with many social institutions, as I show drawing on insights from the philosophy of society. Theorists also typically fail to recognize two distinct orientations of law, and multiple forms of law, which singular concepts of law cannot accommodate. Finally, variability and change owing to the social-historical nature of law defeats efforts of legal philosophers to identify essential features and universally true concepts of law. At the conclusion I present a way of understanding law that emerges out of the lessons learned from past unsuccessful efforts. -- topic headings in the essay: Three Categories of the Concept of Law; Pivotal Role of Intuitions About Law; Over-Inclusiveness of Functionalism; Under-Inclusiveness of Functionalism; Why Functionalism Cannot Answer ‘What is Law?’; Error of Conflating ‘Rule System’ and ‘Legal System’; Law as Part of the Institutional Substrate of Society; State Law’s Two Orientations; Coexisting Multiple Legal Forms; Necessary and Essential Features Or Typical Features; Universal Application Versus Universal Truth; What is Law -- No. Pages: 49 -- Keywords: jurisprudence, philosophy of law, law and society, legal anthropology, legal sociology, legal history, and comparative law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_history  legal_theory  legal_culture  legal_realism  legal_reasoning  legal_validity  functionalism  institutions  institutional_change  social_order  universalism  normativity  norms  custom  customary_law  sociology_of_law  comparative_law  concepts  concepts-change  rule_of_law  downloaded  EF-add 
january 2015 by dunnettreader
Scott Hershovitz - The End of Jurisprudence :: SSRN - Oct 2014
Via Brian Tamanaha -- Scott Hershovitz, University of Michigan Law School -- Yale Law Journal, Forthcoming -- For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The debate starts from the premise that our legal practices generate rights and obligations that are distinctively legal, and the question at issue is how their content is determined. Positivists say that their content is determined ultimately or exclusively by social facts. Anti-positivists say that moral facts must play a part in determining their content. In this Essay, I argue that the debate rests on a mistake. Our legal practices do not generate rights and obligations that are distinctively legal. At best, they generate moral rights and obligations, some of which we label legal. I defend this view by drawing analogies with other normative practices, like making promises, posting rules, and playing games. And I try to explain why it looks like legal practices generate distinctively legal rights and obligations even though they do not. I conclude with some thoughts about the questions jurisprudence should pursue in the wake of the Hart-Dworkin debate. -- Number of Pages: 63 -- Keywords: jurisprudence, H.L.A. Hart, Ronald Dworkin, Hart-Dworkin Debate, legal positivism, anti-positivism, philosophy of law
paper  SSRN  philosophy_of_law  jurisprudence  Hart  Dworkin  judiciary  legal_theory  legal_culture  legal_realism  legal_reasoning  sociology_of_law  normativity  moral_philosophy  morality-conventional  morality-objective  legal_validity  rights-political  rights-legal  natural_law  Wittgenstein  downloaded  EF-add 
january 2015 by dunnettreader
Law's Evolution and Law as Custom by William A. Edmundson :: SSRN
William A. Edmundson, Georgia State University College of Law -- 51 San Diego L. Rev. (December 2014, Forthcoming). -- Georgia State University College of Law, Legal Studies Research Paper No. 2014-15 -- Legal discourse centrally involves a family of normative expressions – “obligation,” “right,” “permission,” and so on – whose surface grammar parallels that of moral discourse. Is the normativity of legal discourse then a moral normativity? Or is it a distinct type of normativity altogether? (..) Custom is among the sources of law. That much is agreed. But custom can also be law, independently of promulgation, or so many believe. (..) Insofar as a customary norm is (or becomes) a legal norm, does it manifest (or acquire) a different kind of normativity? Or does its original normativity contribute to the normativity of law? Another set of questions has to do with custom as a condition of legal validity. [Different positions of Kelsen and Hart] I will explore the hypothesis that every legally normative utterance resolves into one expressing (a) custom-implicating moral normativity, (b) custom-extending moral normativity, or (c) normativity “in the manifesto sense” (to enlist a phrase of Joel Feinberg’s). If this is correct, there is no such thing as a distinctively legal brand of normativity. -- No. Pages: 30 -- Keywords: legal theory, legal philosophy, philosophy of law, normativity, norm, custom, validity, moral, desuetudo, moral philosophy -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_history  legal_theory  legal_culture  sociology_of_law  legal_realism  legal_reasoning  normativity  moral_philosophy  morality-conventional  morality-objective  legal_validity  norms  custom  customary_law  downloaded  EF-add 
january 2015 by dunnettreader
Roger Cotterrell - Why Jurisprudence Is Not Legal Philosophy :: SSRN - January 24, 2014
Via Brian Tamanaha -- Roger Cotterrell, Queen Mary University of London, School of Law -- Jurisprudence, Vol. 5, No. 1, 2014, Forthcoming - Queen Mary School of Law Legal Studies Research Paper No. 169/2014 -- The aim of this paper is to describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically (rather than philosophically) significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals. - Number of Pages: 18 -- Keywords: Jurisprudence; legal philosophy; contemporary legal positivism; universalism; legal naturalism; law in context; socio-legal perspectives; bricolage; jurists. -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  judiciary  legal_theory  legal_culture  justice  legal_realism  legal_reasoning  universalism  natural_law  downloaded  EF-add 
january 2015 by dunnettreader
Brian Tamanaha - Balkinization: Whither Jurisprudence? - Jan 2015
Scott Hershovitz's "The End of Jurisprudence" is a terrific article. [Downloaded from SSRN] For the past four decades, he asserts, "jurisprudence has been dominated by the Hart-Dworkin debate," and it is time to move on. -- "The time has come for jurisprudence to drop the metaphysics and take up morals. The question that jurisprudence should aim to answer is how our legal practices affect our moral rights, obligations, privileges, and powers. The metaphysical question posed in the Hart-Dworkin debate was a distraction; we have no good reason to think that our legal practices generate a distinctively legal domain of normativity, or quasi-normativity, whose metaphysics we must unravel. But the moral question is vital; it is contested everyday, in court and out, with serious consequences for peoples’ lives." (..) Though I agree this deserves attention, I do not agree that jurisprudence has or requires a particular end, whether this one or any other. The field thrives best when jurisprudence scholars pursue many different intellectual projects. In my view, jurisprudence remains vital by focusing on important legal phenomena and by drawing from other disciplines for insights. On that note, I offer my draft essay "What is Law?" [Downloaded from SSRN, as well as 2014 article by Roger Cotterrell]
philosophy_of_law  jurisprudence  judiciary  legal_theory  legal_realism  normativity  moral_philosophy  norms  morality-conventional  obligation  Hart  Dworkin 
january 2015 by dunnettreader
Francis Joseph Mootz - Hermeneutics and Law (June 30, 2014) in The Blackwell Companion to Hermeneutics (Eds. Naill Keane and Chris Lawn, 2015) :: SSRN
University of the Pacific - McGeorge School of Law -- This chapter will appear in a forthcoming book on hermeneutics. After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes: (1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law; (2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by construing human nature as hermeneutical; and. (3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas. -- I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory. -- downloaded pdf to Note
article  books  SSRN  legal_history  legal_system  legal_theory  historiography  lit_crit  critical_theory  legal_reasoning  judiciary  precedent  hermeneutics  natural_law  positivism-legal  legal_realism  rhetoric-writing  human_nature  epistemology-social  epistemology-moral  Gadamer  Habermas  Ricoeur  Heidegger  downloaded  EF-add 
august 2014 by dunnettreader
Review Essay: Legal Thought in Enlightenment's Wake by Jeffrey A. Pojanowski :: SSRN - 4 Jurisprudence, 2013, Forthcoming
Notre Dame Legal Studies Paper No. 12-80 -- This review essay considers Steven D. Smith’s most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book’s argument about the practices and pathologies of the public square, this essay uses Smith’s chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith’s prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about legal obligation and authority in contemporary jurisprudence. Such perspective points to a broader argument that jurisprudential debates about methodology and concepts may be as much about how we read the universe as they are about how we understand law. -- Keywords: jurisprudence, legal theory, obligation, authority, conceptual analysis, legal positivism
books  reviews  philosophy_of_law  political_philosophy  moral_philosophy  obligation  secularism  secularization  legal_realism  authority  legal_theory  analytical_philosophy  concepts  legal_culture  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Brian Bix - On Philosophy in American Law: Analytical Legal Philosophy :: SSRN in PHILOSOPHY IN AMERICAN LAW, Francis J. Mootz, III, ed., Cambridge University Press, 2009
This short article was written for a collection on American legal philosophy today. It gives a brief overview of analytical legal philosophy, and speculates on why this theoretical approach has been consistently misunderstood in the United States, from the time of the legal realists until today. --Number of Pages in PDF File: 6 -- Keywords: analytical legal philosophy, legal theory, legal positivism
article  books  SSRN  intellectual_history  19thC  20thC  philosophy_of_law  analytical_philosophy  legal_realism  positivism-legal  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Is There an 'American' Jurisprudence? - review essay of Neil Duxbury, PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995) :: SSRN
C U of Texas Law, Public Law Research Paper No. 74

Abstract:
This is a review essay discussing Neil Duxbury's book PATTERNS OF AMERICAN JURISPRUDENCE (Oxford University Press, 1995), taking issue, in particular, with Professor Duxbury's misunderstandings of (1) American Legal Realism, (2) Critical Legal Studies, and (3) the relationship between economic analysis of law and Legal Realism. The essay also addresses the question whether it is fruitful to think of jurisprudential movements in terms of their geographic boundaries. - Number of Pages in PDF File: 32 - downloaded pdf to Note
books  reviews  SSRN  philosophy_of_law  intellectual_history  20thC  legal_realism  Critical_Legal_Studies  law-and-economics  bibliography  downloaded  EF-add 
july 2014 by dunnettreader
Scott J. Shapiro - What is the Rule of Recognition (and Does it Exist)? [chapter] :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler, Kenneth Himma, eds., Oxford University Press, 2009
Yale Law School, Public Law Working Paper No. 184 -- One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but also founded on them ....we cannot account for the way we talk and think about the law - as an institution which persists over time, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done in a community and so on - without supposing that it is regulated by what he called the secondary rules of recognition, change and adjudication. -- In Part 1 I try to state Hart's doctrine of the rule of recognition with some precision. -- I also explore in this part whether the US Constitution can be considered the Hartian rule of recognition for the US legal system. In Part 2 I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. -- In Part 3 I examine three important challenges to Hart's doctrine: 1) the rule is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems are possible. In Parts 4 & 5, I address these objections. ...athough Hart's particular account of the rule of recognition is flawed, a related notion should be substituted - roughly, to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  legal_system  social_theory  social_order  political_order  change-social  institutions  constitutions  constitutional_law  constitutionalism  normativity  norms  obligation  institutional_change  positivism-legal  Hart  Dworkin  Raz  Finnis  US_constitution  conflict_of_laws  natural_law  legal_validity  legal_realism  sociology_of_law  community  planning  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Holmes, Nietzsche & Classical Realism (2000) :: SSRN
U Texas School of Law Pub. Law Working Paper No. 003 -- The point of departure is Richard Posner's striking suggestion that Holmes is "the American Nietzsche." -- The Essay argues that the real thematic (and tempermental) affinity between Holmes and Nietzsche lies in the fact that both are proponents of a general, but neglected, perspective on questions of moral, political, and legal theory that I will call "Classical Realism." Importantly, the Classical Realism of Holmes and Nietzsche places them in a long tradition of theories of morals, politics, and society that we find in writers like Thucydides, Machiavelli, Freud and (to some extent) Marx, among others. This tradition, however, has almost vanished from the modern academy. It is the most general aim of this paper to revive the doctrine of Classical Realism as a serious--albeit debunking--position in normative theory. -- a meaning both older than and different from that current in academic debates, especially in philosophy, where it names certain doctrines in semantics and metaphysics. Classical Realism...entails no particular semantic and metaphysical doctrines at all. [It] denotes a certain hard-headed, unromantic, uncompromising attitude towards the world, which manifests itself in a brutal honesty and candor in the assessment of human motives and the portrayal of human affairs. The Essay explores this doctrine in some detail in a variety of thinkers, including Holmes, Posner, Nietzsche, Marx, and the American Legal Realists. The Appendix to the Essay offers a critical discussion of Posner's and David Luban's treatment of the Holmes-Nietzsche relation. -- downloaded pdf to Note
paper  SSRN  intellectual_history  social_theory  political_philosophy  moral_philosophy  moral_psychology  philosophy_of_law  realism  legal_realism  Thucydides  Machiavelli  Marx  Nietzsche  Freud  Holmes  human_nature  motivation  downloaded  EF-add 
july 2014 by dunnettreader
Alex Langlinais, Brian Leiter - The Methodology of Legal Philosophy [chapter] (2013) :: SSRN - H. Cappelen, T. Gendler, & J. Hawthorne (eds.), Oxford Handbook of Philosophical Methodology, Forthcoming
U of Chicago, Public Law Working Paper No. 407 -- This is the revised and penultimate version of this paper. The essay surveys issues about philosophical methodology as they arise in general jurisprudence. Certainly in the Anglophone world and increasingly outside it, H.L.A. Hart’s 1961 book The Concept of Law has dominated the discussion. ...methodological debates typically scrutinize either one of two (related) ... claims in Hart’s classic work. The first is that his theory is both general and descriptive (Hart 1994: 239). The second is that his theory is an exercise in both linguistic analysis and descriptive sociology (Hart 1994: vi). We explicate both ideas, arguing, in particular, that (1) Hart aims to give an essentialist analysis of law and legal systems (a point clearest in those who follow him like J. Raz, J. Dickson and [though less of a follower] S. Shapiro), and (2) we can make sense of the linking of linguistic (and conceptual) analysis and descriptive sociology if we understand "law" as a constructed bit of "social reality" in something like John Searle's sense. The ensuing methodological debates in legal philosophy can then be understood as arguing against either linguistic or conceptual analysis (naturalists like B. Leiter), or against the idea of a purely descriptive jurisprudence (in different ways, J. Finnis, S. Perry, M. Murphy, L. Murphy, R. Dworkin). -- Keywords: H.L.A. Hart, methodology, descriptive jurisprudence, conceptual analysis, John Searle, legal philosophy -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  methodology  legal_theory  intellectual_history  social_theory  social_sciences-post-WWII  analytical_philosophy  sociology_of_law  concepts  constructivism  Hart  Raz  Dworkin  Finnis  Searle  natural_law  naturalism  positivism-legal  legal_realism  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Naturalized Jurisprudence and American Legal Realism Revisited (2011 book symposium) :: SSRN - Law and Philosophy, 2011
U of Chicago, Public Law Working Paper No. 352 -- This is my reply to critics in a symposium issue of the journal Law & Philosophy (2011) devoted to my 2007 book NATURALIZING JURISPRUDENCE: AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY. The critics to whom I respond are: Julie Dickson (Oxford University), Michael Steven Green (College of William & Mary), and Mark Greenberg (University of California, Los Angeles). -- Keywords: legal realism, naturalism, jurisprudence, methodology -- downloaded pdf to Note
article  SSRN  philosophy_of_law  legal_system  legal_theory  legal_realism  positivism-legal  naturalism  methodology  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Legal Realisms, Old and New :: SSRN (2012 Seegers Lecture in Jurisprudence) - Forthcoming in Valparaiso Law Review (2013)
“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? -- I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. -- Keywords: American legal realism, Scandinavian legal realism, Karl Llewellyn, Axel Hagerstrom, Alf Ross, naturalism, H.L.A. Hart, Hans Kelsen, judicial behavior
article  SSRN  philosophy_of_law  social_theory  intellectual_history  intellectual_history-distorted  legal_theory  legal_realism  social_sciences  anthropology  sociology_of_law  normativity  norms  causation  causation-social  positivism-legal  naturalism  social_process  judiciary  behavioralism  Hart  Kelsen  US_legal_system  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence (2005) :: SSRN
Heavily cited -- U of Texas Law, Public Law Research Paper No. 34 -- For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called the Hart/Dworkin debate, a debate whose starting point is Ronald Dworkin's 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart's 1961 book, The Concept of Law. This essay reviews the Hart/Dworkin debate and argues that it no longer deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth: on the particulars of the Hart/Dworkin debate, Hart has emerged the clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart are now in doubt. (Dworkin's quite recent polemic against legal positivism in the 2002 Harvard Law Review is also addressed briefly.) The significant philosophical challenges that face legal positivists are now different, often in kind, from the ones Dworkin made famous. These, I shall argue, fall into two broad categories: first, the correct account of the content of the rule of recognition and its relationship to the possibility of law's authority (the Hart/Raz debate); and second, the proper methodology of jurisprudence, a debate which aligns defenders of descriptive conceptual jurisprudence (like Hart and Raz) against two sets of opponents: natural lawyers like Finnis, Perry and Stavropoulos who challenge whether jurisprudence can be descriptive; and philosophical naturalists, like the present author, who question whether conceptual analysis is a fruitful philosophical method in jurisprudence (or elsewhere). -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  20thC  21stC  intellectual_history  positivism-legal  legal_realism  naturalism  natural_law  natural_rights  social_theory  social_sciences-post-WWII  Hart  Dworkin  Finnis  Raz  moral_philosophy  concepts  concepts-change  historical_change  analytical_philosophy  sociology_of_law  downloaded  EF-add 
july 2014 by dunnettreader

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