positivism-legal   41

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
Frederick Schauer - The Path-Dependence of Legal Positivism (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 957 (2015)
My aim in this Article is to focus on the history of thinking about law in the context of 3 topics (..) to show that the continuous development of the theory of legal positivism, however useful it may have been or may still be, has possibly caused us to ignore other aspects of what was originally part of the positivist picture. (..)The first of these dimensions is the relationship between legal theory and legal reform. (..) that an account of the nature of law might be developed not simply as an aid to understanding or accurate description, but instead as a way of facilitating reform of law itself or reform of how a society understands the idea of law. Second, legal positivism, at the time of its late 19thC (or perhaps even earlier) origins, was focused on the importance of coercion, force, and sanctions as central components of law. But as with the creation of legal theories for the purpose of legal reform, this emphasis on the coercive side of law has also been banished to a kind of jurisprudential purgatory, for reasons and with consequences that deserve further examination. The third lost element of earlier versions of legal positivism is its focus on judicial decision making and the role of judges. Modern legal positivists, for whom 1961 is all too often the beginning of useful thought about the nature of law, do not, with few exceptions, consider theories of judicial decision making to be a necessary or even important part of the positivist perspective. But it was not always so. -- downloaded pdf to Note
article  intellectual_history  intellectual_history-distorted  18thC  19thC  20thC  21stC  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  legal_reform  institutional_change  institutions  judiciary  judicial_review  law_enforcement  criminal_justice  punishment  coercion  authority  obligation  policymaking  political_change  social_theory  social_sciences  positivism-legal  positive_law  positivism  justice  Study_and_Uses  downloaded 
july 2015 by dunnettreader
Steven Walt - What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer's "The Path-Dependence of Legal Positivism" | Virginia Law Review - 101 Va. L. Rev. 977 (2015)
Walt's response (at least the abstract) appears to prove Schauer's point quite nicely, as if logic and argument by legal theorists takes place in an abstract world where "how did we get here" is universally ignored, despite its possible relevance for "why are we here", "what are we doing here" and "where does it look like we might be headed" -- but Walt devoted 10 pages to his response, so one hopes he has more to justify his position than what comes across as a mix of arrogance (we don't need to learn from history because our theoretical grounding and argumentative methods are self-contained and self-sufficient) and cynicism (history might be interesting, but no way will anybody change what gets them published and tenure) -- out of curiosity as to whether it's really as bad as the abstract makes it sound, downloaded pdf to Note
article  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  concepts  positivism  positivism-legal  historiography  legal_history  intellectual_history  intellectual_history-distorted  downloaded 
july 2015 by dunnettreader
Dan Priel - Toward Classical Legal Positivism (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 987 (2015)
I have two major aims: (1) set the historical record straight(...) Hobbes’s and Bentham’s work that seeks to understand their views on law not by isolating it from the rest of their wide-ranging body of work, but by understanding their jurisprudential work as part of a broader project. (2) My main aim is to contribute to contemporary jurisprudential debates and to suggest that the largely neglected approach of earlier positivists is superior to the view held by most contemporary legal positivists. (...) to what extent it is useful for us to call Hobbes and Bentham “legal positivists.” My answer to this question consists of three interrelated points. The first is that we draw an explicit link between their ideas and the view that (some time later) would come to be known as “positivism,” roughly the view that the methods of the “human sciences” are essentially the same as those of the natural sciences. The second point is that the classical legal positivists’ decisive break with natural law ideas prevalent in their day is to be found exactly here, in their views about metaphysics and nature. The third point is that this aspect of their work has been, in my view regrettably, abandoned by contemporary legal positivists. Though all three points are related, in this Article I will say relatively little about the first point, as I discussed it in greater detail elsewhere. -- downloaded pdf to Note
article  philosophy_of_law  jurisprudence  political_philosophy  intellectual_history  intellectual_history-distorted  17thC  18thC  19thC  20thC  21stC  Hobbes  Bentham  natural_law  natural_rights  positivism-legal  analytical_philosophy  metaphysics  natural_philosophy  nature  human_nature  scientific_method  social_theory  social_sciences  positivism  positive_law  Methodenstreit  methodology-quantitative  epistemology  sociology_of_knowledge  downloaded 
july 2015 by dunnettreader
Jeffrey A. Pojanowski - Positivism(s): A Commentary on Priel's "Toward Classical Legal Positivism" | Virginia Law Review - 101 Va. L. Rev. 1023 (2015)
Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this rediscovered path, and I am not sure I always agree with his suggested answers. Any misgivings I have about Priel’s particular approach, however, do not diminish my appreciation; I find even the points of disagreement to be live and meaningful, and that itself is refreshing. -- downloaded pdf to Note
article  philosophy_of_law  jurisprudence  political_philosophy  intellectual_history  intellectual_history-distorted  17thC  18thC  19thC  20thC  21stC  Hobbes  Bentham  natural_law  natural_rights  positivism-legal  analytical_philosophy  metaphysics  natural_philosophy  nature  human_nature  scientific_method  social_theory  social_sciences  positivism  positive_law  Methodenstreit  methodology-quantitative  epistemology  sociology_of_knowledge  downloaded 
july 2015 by dunnettreader
Alice Ristroph - Sovereignty and Subversion (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 1029 (2015)
Hobbes’s account of law, like his account of punishment, does not fit well into our existing scholarly categories. (..). He was neither a legal positivist nor a natural law theorist, at least not as we usually use these labels. He adopted neither a retributive nor a consequentialist justification of punishment. Yet his account of human interaction, particularly with respect to law and punishment, captures actual experience better than the more familiar alternatives. Moreover, the space for subversion in Hobbes’s theory may make his account more normatively appealing than it has seemed to modern liberals. (...) 3 questions about Hobbesian theory: What is law? What is its relationship to punishment? And what are the implications of Hobbes’s theory for contemporary efforts to describe law or the relationship of law to punishment? The first (..) Hobbes’s legal theory is still so widely mischaracterized, sometimes even by Hobbes scholars, that it is worth returning to his claims. The second question has received much less attention, perhaps because a right to resist punishment seems so discordant with the authoritarian Hobbes we know, or think we know. And the third question has received still less attention, for contemporary jurisprudence scholarship rarely cites anyone who wrote before Jeremy Bentham and John Austin. I hope to show that, in many instances, Hobbes has been misread; even more importantly, I hope to persuade scholars of jurisprudence that what Hobbes actually said is worthy of their engagement. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  intellectual_history  intellectual_history-distorted  Hobbes  17thC  political_philosophy  social_theory  natural_law  natural_rights  positivism-legal  sovereignty  authority  obligation  punishment  resistance  liberalism  downloaded 
july 2015 by dunnettreader
Mark C. Murphy - A Commentary on Ristroph’s “Sovereignty and Subversion” | Virginia Law Review - 101 Va. L. Rev. 1055 (2015)
She is correct in rejecting the assimilation of Hobbes’s legal theory to Austin’s, and in noting the strands of Hobbes’s view that disqualify him from counting as any sort of legal positivist. And I agree, on the whole, with her characterization of Hobbes’s account of justified punishment, and that this account has its attractions yet produces some puzzles which Hobbes does not fully resolve. My disagreements are with her second-order characterization of Hobbes’s legal theory. I want to discuss two related areas of disagreement. The first disagreement concerns whether we should assess Hobbes’s account of law in terms of the standards of general descriptive jurisprudence: Ristroph denies that it should be; I disagree. The second concerns whether we should take Hobbes’s treatment of the political as explanatorily prior to the legal to show that Hobbes was in some way apart from the natural law tradition in jurisprudence: Ristroph affirms this; I disagree. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  intellectual_history  intellectual_history-distorted  Hobbes  17thC  political_philosophy  social_theory  natural_law  natural_rights  positivism-legal  sovereignty  authority  obligation  punishment  resistance  liberalism  downloaded 
july 2015 by dunnettreader
Charles Barzun and Dan Priel - Jurisprudence and (Its) History - Symposium Introduction | Virginia Law Review 101 Va. L. Rev. 849 (2015)
Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound. But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely) a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group. For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors. At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law. When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law. Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all. -- downloaded pdf to Note
article  philosophy_of_law  philosophy_of_language  ordinary_language_philosophy  jurisprudence  political_philosophy  moral_philosophy  intellectual_history  historiography  legal_history  legal_theory  legal_reasoning  constitutional_law  Founders  originalism  contextualism  change-social  change-economic  change-intellectual  norms  hermeneutics  positivism-legal  philosophy_of_history  institutional_change  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Can There Be a Democratic Jurisprudence? :: SSRN - Nov 2008
NYU School of Law, Public Law Research Paper No. 08-35 -- General jurisprudence purports to consider law in general. But to break out of the arid abstractions of analytic legal philosophy, it may be worth also giving some jurisprudential consideration to the distinctive features of law in the context of a particular kind of political system. This paper considers the jurisprudence of law in a modern democracy. It explores a suggestion (made by Ronald Dworkin and others) that legal positivism might be a theory particularly apt for a democracy. And it explores the meaning and significance for democratic political theory of ideas like the generality of law, the separation of law and morality, the sources thesis, and law's public orientation. At the very end, the paper also considers Jean-Jacques Rousseau's view that the word "law" should be confined to measures that are applicable to all, made by all, and enacted in the spirit of a general will. -- Pages in PDF File: 5 -- Keywords: analytic legal philosophy, democracy, Hart, jurisprudence, legal positivism, Rousseau, separation of law and morality, sources of law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  government-forms  democracy  positivism-legal  analytical_philosophy  Hart  general_will  moral_philosophy  Dworkin  lawmaker  politics-and-religion  legal_reasoning  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Ius Gentium: A Defense of Gentili's Equation of the Law of Nations and the Law of Nature :: SSRN November 2008
NYU School of Law, Public Law Research Paper No. 08-34 -- The relation between the law of nature and the law of nations (ius gnetium) remains unclear. This paper examines Gentili's apparent equation of the two, and it considers more generally how abstract natural law reasoning might be improved by the sort of empirical/comparative law reasoning (as we would call it) that thinkers like Gentili, Grotius and others engaged in when they tried to determine what natural law teaches us about the regulation of war. -- Pages in PDF File: 17 -- Keywords: Gentili, ius gentium, law of nations, laws of war, moral reasoning, natural law, positive law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  Roman_law  natural_law  international_law  positivism-legal  positive_law  moral_philosophy  comparative_law  17thC  18thC  Europe-Early_Modern  Grotius  gentility  law_of_the_sea  law_of_nations  ius_gentium  downloaded 
june 2015 by dunnettreader
Sandy Levinson - The continuing relevance of Stephen A. Douglas: "Popular sovereignty," federalism, and moral relativism" | Balkinization - June 2015
Consider the following passages from the anguished dissents (..by) Scalia and Alito in Obergefell: [re their "indifference" re substance of SSM - notes how much this clashes with their Catholic beliefs that insist on moral absolutes determined by "natural law"] -- Federalism is (..) as a practical matter, as a means of acknowledging the diverse views we have about matters of political or social morality (..) there's much to said for this as a means for maintaining social peace, albeit at the cost of accepting the maintenance of what many might consider significant injustice in some of the states. But note well that what Scalia and Alito are doing is really reviving the theory of "popular sovereignty" best identified with the Little Giant Sen. Stephen A. Douglas with regard to the issue of slavery. (,.) Douglas professed himself indifferent to the moral critique of slavery. (..) What this translated into was the desirability of letting each state, as it joined the Union, make its own decision as to slavery or freedom. Somewhat more complicated was the right of the pre-state territory to make its own decision, in territorial legislatures, to welcome slaveowners. Douglas, to his political detriment, argued that they could place stumbling blocks in the way of the slaveowners, but, if they chose not to, that was all right too. The important thing was to recognize the fundamentally "federal" nature of the Union, a collection of people with decidedly different views about the legitimacy of owning other human beings as chattels, and to allow that decision to be made locally rather than on a one-size-fits-all national basis.
Instapaper  SCOTUS  constitutional_law  19thC  states_rights  federalism  slavery  morality-conventional  morality-divine_command  morality-Christian  rights-legal  natural_law  natural_rights  positivism-legal  Holmes  Douglas_Stephen  Lincoln  antebellum_era  abolition  marriage  Thomism  Thomism-21stC  Catholics  Papacy  from instapaper
june 2015 by dunnettreader
Stephen Turner - Max Weber and the Dispute Over Reason and Value (Routledge, 1984) | bookmark for book abstract - Academia.edu
The problem of the nature of values and the relation between values and rationality is one of the defining issues of twentieth-century thought and Max Weber was one of the defining figures in the debate. In this book, Turner and Factor consider the development of the dispute over Max Weber's contribution to this discourse, by showing how Weber's views have been used, revised and adapted in new contexts. The story of the dispute is itself fascinating, for it cuts across the major political and intellectual currents of the twentieth century, from positivism, pragmatism and value-free social science, through the philosophy of Jaspers and Heidegger, to Critical Theory and the revival of Natural Right and Natural Law. As Weber's ideas were imported to Britain and America, they found new formulations and new adherents and critics and became absorbed into different traditions and new issues. This book was first published in 1984 by Routledge. -- Research Interests: Ethics, Political Theory, Continental Philosophy, Max Weber (Philosophy), Social and Political Philosophy, and Max Weber
books  intellectual_history  19thC  20thC  Weber  social_theory  political_philosophy  moral_philosophy  philosophy_of_social_science  epistemology  epistemology-social  positivism  rationality  values  fact-value  constructivism  pragmatism  German_scholarship  German_historical_school  hermeneutics  Heidegger  Frankfurt_School  critical_theory  natural_law  natural_rights  positivism-legal 
may 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 - The End of Empire: Dworkin and Jurisprudence in the 21st Century (2005) :: SSRN
U of Texas Law, Public Law Research Paper No. 70 -- This essay (based on a keynote address to the inaugural conference of the new Rutgers Institute for Law and Philosophy) reviews five major developments in the field of law and philosophy over the past 30 years, examining, in particular, the place of the well-known work of Ronald Dworkin, work which has loomed larger outside the field than within. In particular, it argues that the seven most distinctive Dworkinian theses about the nature of law and adjudication have now been extensively and decisively criticized over the past three decades, so much so that Dworkin himself has abandoned several of them. While Dworkin's work was indisputably important for the development of legal positivism in the final quarter of the twentieth-century, the essay shows why it is unlikely to play much role in jurisprudence of the 21st century. -- Number of Pages in PDF File: 22 -- downloaded pdf to Note
article  SSRN  intellectual_history  20thC  post-WWII  social_sciences-post-WWII  philosophy_of_law  moral_philosophy  positivism-legal  Dworkin  downloaded  EF-add 
july 2014 by dunnettreader
Brian Leiter - Explaining Theoretical Disagreement (2007) :: SSRN
Cited a number of times of Texas Law, Public Law Research Paper No. 124 -- Shapiro (2007) argues that Dworkin posed a new objection to legal positivism in Law's Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls "theoretical disagreement" about law, that is, disagreement about "the grounds of law" or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new, and disagree that it has not been met. Positivism can not offer an explanation that preserves the "face value" of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or "head count" dispute, i.e., a dispute about what judges are doing, and how many of them are doing it. Positivism, however, has two other explanations for theoretical disagreement - either theoretical disagreements are disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law,...or they are simply in error, that is, ...there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition. The "Disingenuity" and "Error Theory" accounts of theoretical disagreement are explored, with attention to the theoretical desiderata (e.g., simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v. Palmer -- Number of Pages: 44
paper  SSRN  philosophy_of_law  sociology_of_law  positivism-legal  foundationalism  Dworkin  legal_validity 
july 2014 by dunnettreader
Jeremy Waldron Who Needs Rules of Recognition? by :: SSRN in THE RULE OF RECOGNITION AND THE U.S. CONSTITUTION, Matthew Adler and Kenneth Himma, eds., Oxford University Press, 2009
NYU School of Law, Public Law Research Paper No. 09-21 -- I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters. -- Number of Pages in PDF File: 28 -- Keywords: certainty, closure, common law, constitution, grundnorm, H.L.A. Hart, Hans Kelsen, Jeremy Bentham, jurisprudence, legal positivism, rule of change, rule of recognition -- downloaded pdf to Note
article  books  SSRN  philosophy_of_law  political_philosophy  legal_system  sociology_of_law  legal_validity  constitutionalism  positivism-legal  common_law  change-social  institutional_change  legislation  judiciary  precedent  judicial_review  foundationalism  US_constitution  Bentham  Hart  Kelsen  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

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