dunnettreader + jurisprudence   34

RB Outhwaite - The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (2007) | Cambridge University Press
The first history of ecclesiastical jurisdiction in England that covers the period up to the removal of principal subjects inherited from the Middle Ages. Probate, marriage and divorce, tithes, defamation, and disciplinary prosecutions involving the laity are all covered. All disappeared from the church's courts during the mid-nineteenth century, and were taken over by the royal courts. The book traces the steps and reasons - large and small - by which this occurred.
Downloaded 1st 10 pgs Ch 1 via Air
1. The ecclesiastical courts: structures and procedures
2. The business of the courts, 1500–1640
3. Tithe causes
4. Wills and testamentary causes
5. Defamation
6. Matrimonial litigation and marriage licenses
7. Office causes
8. The roots of expansion and critical voices
9. Charting decline, 1640–1830
10. Explaining decline
11. The Bills of 1733–1734
12. Snips and repairs: small steps to reform, 1753–1813
13. Royal commissions and early fruits, 1815–1832
14. Reform frustrated
15. Reforms thick and fast, 1854–1860.
books  downloaded  legal_history  church_history  16thC  17thC  18thC  19thC  British_history  Church_of_England  legal_system  church_courts  religion-established  family  marriage  jurisprudence  jurisdiction  inheritance  property  trusts  dispute_resolution  reform-social  reform-legal  morality-Christian  local_government  local_politics  discipline  punishment  authority  hierarchy  governing_class  governance-church  ecclesiology 
september 2016 by dunnettreader
(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
Forum - Samuel Moyn's "Christian human rights" - overview page | The Immanent Frame
In 2010, Samuel Moyn published The Last Utopia: Human Rights in History, which offered an alternative historical explanation for the origins of human rights. He rejected narratives that viewed human rights as a long-term historical product of the Judeo-Christian tradition, The French Revolution, or Enlightenment rationalism, arguing that human rights as it is now understood began to emerge only during the 1970s. Prior to this, according to Moyn, rights were connected to the nation-state and had nothing to do with an international standard of morality or justice. In addressing critiques of The Last Utopia, Moyn has given considerable attention to the relationship between human rights and religion, conceding that there is, undoubtedly, a relationship between Christianity—Catholicism in particular—and human rights, but arguing that the “death of Christian Europe” by the 1960s “forced a complete reinvention of the meaning of human rights embedded in European identity both formally and really since the war”. Contributors offer their thoughts on Moyn’s article “Personalism, Community, and the Origins of Human Rights,” which became a central focus (see excerpt) in his forthcoming book, Christian Human Rights (University of Pennsylvania Press, 2015). Contributors also respond to “Christian Human Rights,” the introductory essay written for this series. -- downloaded pdfs but their footnotes and links don't work, so collected them in Evernote them
books  intellectual_history  narrative-contested  bad_history  intellectual_history-distorted  religious_history  church_history  moral_philosophy  theology  human_rights  natural_rights  medieval_philosophy  Europe-Medieval  Enlightenment  Enlightenment_Project  Enlightenment-ongoing  French_Revolution  IR  Europe  20thC  WWI  WWII  entre_deux_guerres  post-Cold_War  post-colonial  nation-state  genocide  Holocaust  UN  international_law  natural_law  law_of_nations  law_of_the_sea  justice  jurisprudence  philosophy_of_law  political_philosophy  political_culture  democracy  equality  liberty  Christendom  Judeo-Christian  links  Evernote 
july 2015 by dunnettreader
Andrew S. Gold, Paul B. Miller, eds. -- Introduction: Philosophical Foundations of Fiduciary Law (Oxford UP 2014) :: SSRN
Andrew S. Gold, DePaul University, College of Law and Paul B. Miller, McGill University Faculty of Law -- This Introduction outlines core questions of fiduciary law theory and provides thematic discussion of the contributions to the volume. The volume includes chapters by Richard Brooks, Hanoch Dagan, Evan Criddle, Deborah DeMott, Avihay Dorfman, Justice James Edelman, Evan Fox-Decent, Tamar Frankel, Joshua Getzler, Andrew Gold, Michele Graziadei, Sharon Hannes, Genevieve Helleringer, Ethan Leib, Daniel Markovits, Paul Miller, Irit Samet, Robert Sitkoff, Henry Smith, and Lionel Smith. -- PDF File: 17 -- Keywords: Philosophy of Law, Legal Theory, Philosophy of Private Law, Private Law Theory, Fiduciary Law, Fiduciary Relationships, Fiduciary Duties, Fiduciary Remedies, Duty of Loyalty, Duty of Care, Duty of Candour -- downloaded pdf to Note
chapter  books  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_reasoning  fiduciaries  principal-agent  agents  duties-legal  rights-legal  trust  trusts  duty_of_care  duty_of_loyalty  conflict_of_interest  legal_remedies  law-and-economics  law-and-finance  Roman_law  civil_law  common_law  property  inheritance  family_law  downloaded 
july 2015 by dunnettreader
David Millon - The Single Constituency Argument in the Economic Analysis of Business Law :: SSRN - Jan 2007
David Millon, Washington and Lee University - School of Law -- Research in Law and Economics, 2007 -- Washington & Lee Legal Studies Paper No. 2007-01 -- The essay points out an interesting parallel in law-and-economics business law scholarship. Working largely independently of each other, economically oriented scholars working in different areas have argued that the law should focus on the interests of a single constituency - shareholders in corporate law, creditors in bankruptcy law, and consumers in antitrust law. Economic analysts thus have rejected arguments advanced by progressive scholars working in each of these areas that the law should instead concern itself with the full range of constituencies affected by business activity. The law-and-economics single constituency claim rests in part on skepticism about judicial competence but the underlying objection is to the use of law for redistributive purposes. The primary value is efficiency, defined in terms of market-generated outcomes. In this essay, I question this political commitment, suggesting that it implies a strong tendency toward maintenance of the existing distribution of wealth. Even more importantly, the single constituency claim may actually have redistributive implications. In each of these areas of business law, however, it is a regressive program that favors owners of capital against those who are generally less well of, such as workers and small business owners. -- Number of Pages in PDF File: 31 -- saved to briefcase
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  political_philosophy  political_economy  law-and-economics  conflict_of_interest  principal-agent  profit_maximization  incentives  incentives-distortions  efficiency  shareholder_value  creditors  consumers  consumer_protection  competition  status_quo_bias  capital  inequality-wealth  inequality-opportunity  power-asymmetric  capital_as_power  distribution-income  distribution-wealth  corporate_governance  corporate_law  corporate_citizenship  bankruptcy  antitrust  conservative_legal_challenges 
july 2015 by dunnettreader
Robert H. Sitkoff - An Economic Theory of Fiduciary Law :: SSRN - Philosophical Foundations of Fiduciary Law, Andrew Gold & Paul Miller eds. (Oxford UP, 2014
Harvard Law -- In consequence of this common economic structure [agency problem], there is a common doctrinal structure that cuts across the application of fiduciary principles in different contexts. However, (..) the particulars of fiduciary obligation vary in accordance with the particulars of the agency problem in the fiduciary relationship at issue. This explains (1) the purported elusiveness of fiduciary doctrine and (2) why courts apply fiduciary law both categorically, such as to trustees and (legal) agents, as well as ad hoc to relationships involving a position of trust and confidence that gives rise to an agency problem. (...) a functional distinction between primary and subsidiary fiduciary rules. In all fiduciary relationships we find general duties of loyalty and care, typically phrased as standards, (..) we also find specific subsidiary fiduciary duties, often phrased as rules, that elaborate on the application of loyalty and care to commonly recurring circumstances in the particular form of fiduciary relationship. (..) the puzzle of why fiduciary law includes mandatory rules that cannot be waived in a relationship deemed fiduciary. Committed economic contractarians, such as Easterbrook and Fischel, have had difficulty in explaining why the parties to a fiduciary relationship do not have complete freedom of contract. The answer is that the mandatory core of fiduciary law serves a cautionary and protective function within the fiduciary relationship as well as an external categorization function that clarifies rights for third parties. -- PDF File: 14 -- Keywords: fiduciary, agency, trust, loyalty, care, prudence, agency costs, duty
chapter  books  SSRN  law-and-economics  behavioral_economics  philosophy_of_law  jurisprudence  fiduciaries  agents  principal-agent  freedom_of_contract  trust  trusts  duty_of_care  duty_of_loyalty  conflict_of_interest  legal_reasoning  rights-legal  duties-legal  common_law 
july 2015 by dunnettreader
Nicola Lacey - Jurisprudence, History, and the Institutional Quality of Law (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 919 (2015)
A cri de coeur for putting legal theory and history back together with social theory and empirical social sciences,. -- In the early part of my career, legal history and the history of legal ideas were closed books to me, as I made my way in a field of criminal law scholarship dominated by doctrinal scholarship and by concept-focused philosophical analysis of the foundations of criminal law. These 2 very different paradigms have 1 big thing in common: They tend to proceed as if the main intellectual task is to unearth the deep logic of existing legal doctrines, not infrequently going so far as to read them back onto history, as if things could never have been other than they are. (..)I have increasingly found myself turning to historical resources (1) [to examine] the contingency of particular legal arrangements, and (2) ...to develop causal and other theses about the dynamics which shape them and hence about the role and quality of criminal law as a form of power in modern societies. So, in a sense, I have been using history in support of an analysis driven primarily by the social sciences. (..) it is no accident that all of the great social theorists, from Marx to Foucault via Weber, Durkheim, and Elias, ..have incorporated significant historical elements into their interpretations .... Indeed, without the diachronic perspective provided by history (or the perspective offered by comparative study) we could have no critical purchase on social theory’s characterizations of or causal hypotheses about the dynamics of social systems. Hence, (...) my boundless gratitude to the historians whose meticulous research makes this sort of interpretive social theory possible). -- Lacey is not over-dramatizing -- see the "commentary" from a "legal philosopher" who believes the normative basis of criminal responsibility can be investigated as timeless "moral truths". -- downloaded pdf to Note
article  social_theory  historical_sociology  historical_change  institutions  institutional_change  philosophy_of_law  philosophical_anthropology  philosophy_of_social_science  jurisprudence  legal_theory  analytical_philosophy  concepts  morality-conventional  morality-objective  criminal_justice  responsibility  mind  human_nature  norms  power-asymmetric  power-symbolic  power  Neoplatonism  neo-Kantian  a_priori  historiography  intellectual_history  political_philosophy  political_culture  moral_philosophy  evidence  mental_health  social_order  epistemology  epistemology-moral  change-social  change-intellectual  comparative_law  comparative_anthropology  civil_liberties  women-rights  women-property  rights-legal  rights-political  access_to_services  discrimination  legal_culture  legal_system  legal_reasoning  Foucault  Marx  Weber  Durkheim  metaethics  downloaded 
july 2015 by dunnettreader
Kimberly Kessler Ferzan - Of Weevils and Witches: What Can We Learn from the Ghost of Responsibility Past? A Commentary on Lacey's "Jurisprudence, History, and the Institutional Quality of Law" | Virginia Law Review - 101 Va. L. Rev. 947 (2015)
Lacey's article (..) criticizes the scholarship on criminal responsibility for being too concerned with “its conceptual contours and moral foundations,” “rather than with what it is for[:] its social roles, meaning, and functions.” Here is what she is arguing against. There are theorists, myself included, who think of questions of responsibility in philosophical terms. These moral truths are not socially or historically contingent; they are constant questions to which we seek answers. (..) In some ways, this is a (boring) methodological debate. What I care about as responsibility is not what she cares about as responsibility. -- YIKES -- Apart from the travesty of equating legal norms with "moral truths," this looks like moral realism run amok -- the questions may be "constant" but who gets to frame the Qs, what values are doing the framing (blood money, retribution, restitution, prevention, hierarchy reinforcement, group purification), what anthropology and epistemology implicitly govern the framing (universal depravity, trial by ordeal, women's testimony is unreliable?), the defined criteria (lower orders don't have honor they can defend, husbands can't commit rape), how criteria are to be applied, by whom (civil vs religious authority, manor courts vs king's law, lie detector operators, NSA algorithms?) -- "Philosophical" inquiry is limited to *a priori* concerns, and "philosophical" answers are limited to eternal Platonic "moral truths". But if normative Qs & As are by definition not contingent on changing institutions and social assumptions re behavior, what's's the foundation for her inquiry process? Armchair "fine-grained" intuitions re "mental states"? So do we get new "moral truths" along with the each new neuroscience study? "Proof there's no free will!"="moral truth" (let everybody out of jail?) and next month "Latest study finds the free will spot"=oops, new eternal "moral truth" (can we test it like DNA?) -- Analytic philosophy rediscovering Aristotelian categories is bad enough, but analytic neo-Platonic anthropology gets me actively hostile, and it's even more absurd if we're talking about criminal law -- didn't download
article  analytical_philosophy  a_priori  moral_philosophy  morality-objective  jurisprudence  criminal_justice  biocultural_evolution  human_nature  moral_psychology 
july 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
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
Gerald J. Postema - Jurisprudence, the Sociable Science (Symposium - Jurisprudence and (Its) History) | Virginia Law Review - 101 Va. L. Rev. 869 (2015)
Renaissance jurisprudence strove to be a sociable science. Following Ulpian’s lead, it refused to relegate jurisprudence either to pure speculation or to mere practice. Jurisprudence was a science, a matter of knowledge and of theoretical understanding, not merely an applied art or practice of prudence innocent of theory. It was regarded as the very heart of theoretical studies, drawing to itself all that the traditional sciences of theology, metaphysics, and moral philosophy, as well as the newly emerging humanist sciences of philology and hermeneutics, had to offer. No less resolutely, however, it refused to abandon its foothold in the life of practice. (..) Rather than reject philosophical reflection, (..) Renaissance jurists sought to locate it in concrete human life and experience. (..) Philosophy.., was most true to its vocation, and was most engaged in human life, when its reflections were anchored in the social life acknowledged, comprehended, and informed by and informing law. Jurisprudence, vera philosophia, was ...the point at which the theoretical and the practical intersected (..) at its “sociable” best sought to integrate them. Analytic jurisprudence began as self-consciously, even militantly, “unsociable,” and its matured and much-sophisticated descendant, fin de siècle analytic legal philosophy, remained largely if not exclusively so. (..) It may be time, in this period of self-conscious attention to jurisprudential method, to press beyond the current limits of this debate over method to a reassessment of the ambitions of jurisprudence and of philosophy’s role in it. (..) my aim is not critical but constructive. (..) to recover something of the ideal of jurisprudence as a sociable science, to retrieve as much as our disenchanted age can be challenged to embrace, or at least to entertain, of the ambition of jurisprudence as vera philosophia. -- downloaded pdf to Note
article  jurisprudence  philosophy_of_law  social_theory  social_sciences  intellectual_history  Renaissance  16thC  17thC  18thC  19thC  20thC  common_law  moral_philosophy  morality-conventional  norms  analytical_philosophy  concepts  concepts-change  change-social  change-intellectual  social_order  legal_history  legal_theory  legal_reasoning  pragmatism  Peirce  continuity  historical_change  methodology-qualitative  downloaded 
june 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
Jeremy Waldron - What do the Philosophers Have against Dignity? (Nov 2014) :: SSRN
NYU School of Law, Public Law Research Paper No. 14-59 -- Among analytic philosophers, there is considerable antipathy towards the concept of human dignity. It is not always expressed, but the impression is conveyed that this is a rather disreputable idea and that its trumpeting in legal and political theory is to be deplored. The present paper tries to get to grips with the sources of this antipathy. Is it based on the unclarity of the concept, its religious overtones, its speciesism, or its redundancy as a moral idea. The paper makes a case for dignity as a status-concept -- denoting a particular sort of moral/legal status that all humans have. -- Pages in PDF File: 23 -- Keywords: definition, dignity, foundationalism, human dignity, religion, rights -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  analytical_philosophy  concepts  dignity  moral_philosophy  political_philosophy  status  human_rights  foundationalism  politics-and-religion  natural_law  natural_rights  downloaded 
june 2015 by dunnettreader
Jeremy Waldron -Judicial Review and Judicial Supremacy (Nov 2014) :: SSRN
NYU School of Law, Public Law Research Paper No. 14-57 -- This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme but sovereign, by taking on a position of something like broad sovereignty within the constitutional scheme (thus confirming Thomas Hobbes in his conviction that the rule of law cannot be applied at the highest level of political authority in a state because any attempt to apply it just replicates sovereignty at a higher level)); (3) the tendency of courts to portray themselves as entitled to "speak before all others" for those who made the constitution, to take on the mantle of pouvoir constituant and to amend or change the understanding of the constitution when that is deemed necessary. -- Pages in PDF File: 44 -- Keywords: constitutions, Hobbes, judicial review, judicial supremacy, judges, judiciary, popular constitutionalism, rule of law, Sieyes, sovereignty -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  political_philosophy  government-forms  Hobbes  Sieyes  sovereignty  authority  democracy  accountability  constitutions  constitutionalism  judicial_review  judiciary  conflict  public_policy  public_opinion  change-social  political_change  policymaking  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - The Rule of Law in Public Law (September 2014) :: SSRN - Cambridge Companion to Public Law, Forthcoming
NYU School of Law, Public Law Research Paper No. 14-40 -- This paper explores the possibility of a conception of the rule of law that is oriented specifically to public law. It is not a conception of the rule of law that privileges private law rights (like rights of property) nor is it an abstract or anodyne conception that is supposed to apply to all areas of governance indiscriminately. Instead this is an account of the rule of law that takes the mission of public administration seriously and seeks to establish it on a footing of legality rather than managerialism, while at the same time acknowledging that sometimes private interests have to give way to the interests of the public. -- Number of Pages in PDF File: 19 -- Keywords: Dicey, discretion, public law, public administration, rule of law -- downloaded pdf to Note
chapter  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  public_law  administrative_law  rule_of_law  discretion  managerialism  public_interest  public_goods  rights-legal  constitutional_law  property_rights  property-confiscations  downloaded 
june 2015 by dunnettreader
Jeremy Waldron - Public Rule of Law (keynote address) :: SSRN September 2014
Inaugural Conference of International Society for Public Law, June 2014 -- NYU School of Law, Public Law Research Paper No. 14-41 -- This paper was delivered as the keynote address at the inaugural conference of the International Society for Public Law, in the Palazzo Vecchio in Florence, on 26 June, 2014. It develops an understanding of public law that takes seriously both the idea of public governance and the idea of individual parties as members of the public. And it outlines an understanding of the rule of law that matches these public-spirited conceptions. -- Number of Pages in PDF File: 22 -- Keywords: private property, public administration, public law, republicanism, rule of law -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  jurisprudence  legal_theory  legal_system  common_good  public_law  public_goods  government-roles  administrative_law  administrative_agencies  government_agencies  property  property_rights  republicanism  rule_of_law  political_participation  governance  downloaded 
june 2015 by dunnettreader
Emmanuelle de Champs - Enlightenment and Utility: Bentham in French, Bentham in France (to be released March 2015) | Ideas in Context series | Cambridge University Press
Jeremy Bentham (..) was a seminal figure in the history of modern political thought. This lively monograph presents the numerous French connections of an emblematic British thinker. (..) Placing Bentham's thought in the context of the French-language Enlightenment through to the post-Revolutionary era, (..) the case for a historical study of 'Global Bentham'. Examining previously unpublished sources, she traces the circulation of Bentham's letters, friends, manuscripts, and books in the French-speaking world. (..) transnational intellectual history reveals how utilitarianism, as a doctrine, was both the product of, and a contribution to, French-language political thought at a key time(..). The debates (re) utilitarianism in France cast new light on the making of modern Liberalism. **--** Intro **--** Part I. An Englishman in the Republic of Letters: 1. Languages of Enlightenment *-* 2. Satire and polemics *-* 3. Defining utilitarianism: private connections and correspondence **--** Part II. 'Projet d'un corps de loix complet' and the Reform of Jurisprudence in Europe: 4. The Genesis of Projet *-* 5. Projet in Enlightenment legal thought *-* 6. The politics of legal reform **--** Part III. Reflections for the Revolution in France: 7. Frenchmen and Francophiles: Lord Lansdowne's network *-* 8. British expertise for French legislators *-* 9. Utility, rights and revolution: missed encounters? **--** Part IV. Utile Dulcis? Bentham in Paris, 1802: 10. Dumont's editorship: from the Bibliothèque Britannique to Traités de législation civile et pénale *-* 11. A mixed reception *-* 12. Autumn 1802: Bentham in Paris **--** Part V. Liberty, Utility and Rights (1815–1832): 13. 'For one disciple in this country, I have 50 at least in France' *-* 14. Utilitarian arguments in French politics *-* 15. A Utilitarian moment? French liberals and utilitarianism *-* Epilogue: Bentham in the July Revolution *-* Conclusion -- marketing materials not yet available
books  find  intellectual_history  political_philosophy  political_economy  legal_theory  18thC  19thC  British_history  France  French_Enlightenment  Enlightenment  Bentham  utilitarianism  utility  reform-political  reform-social  reform-legal  reform-economic  jurisprudence  civil_code  Republic_of_Letters  networks-policy  networks-information  Anglo-French  British_foreign_policy  diplomats  diplomacy-environment  francophile  Landsdowne_Marquis_of  faction  British_politics  patrons  patronage  elite_culture  cross-border  cultural_history  cultural_influence  technical_assistance  criminal_justice  liberalism  rights-legal  rights-political  civil_law  civil_liberties  civil_society  French_Revolutionary_Wars  Peace_of_Amiens  Napoleonic_Wars  Restoration-France  bourgeoisie  July_Monarchy  legal_reasoning  positivism-legal 
february 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
Jeremy Waldron - A Religious View of the Foundations of International Law (2011) :: SSRN - Charles E. Test Lectures in the James Madison Program at Princeton University
NYU School of Law, Public Law Research Paper No. 11-29 -- Lecture 1 begins from a specifically Christian point of view, though it also addresses the difficulties of sustaining a viewpoint of this kind in a multi-faith and indeed increasingly secular world. Lecture 2 considers nationhood, sovereignty, and the basis for the division of the world into separate political communities. A religious approach to international order will endorse the position of most modern international jurists that sovereign independence is not to be made into an idol or a fetish, and that the tasks of order and peace in the world are not to be conceived as optional for sovereigns. But sovereigns also have their own mission, ordering particular communities of men and women. Lecture 3 considers the rival claims of natural law and positivism regarding sources of international law. The most telling part of natural law jurisprudence from Aquinas to Finnis has always been its insistence on the specific human need for positive law. This holds true in the international realm as much as in any realm of human order - perhaps more so, because law has to do its work unsupported by the overwhelming power of a particular state. Lecture 3 addresses, from a religious point of view, the sources of law in the international realm: treaty, convention, custom, precedent, and jurisprudence. It will focus particularly on the sanctification of treaties. -- No of Pages : 73 -- Keywords: customary international law, international law, ius cogens, nationalism, natural law, positivism, public reason, religion, self-determination, sovereignty, treaties -- downloaded pdf to Note
paper  SSRN  philosophy_of_law  international_law  natural_law  positivism-legal  IR  IR_theory  diplomacy  international_organizations  legal_system  international_system  sovereignty  nation-state  nationalism  public_sphere  liberalism-public_reason  deliberation-public  decision_theory  customary_law  self-determination  national_interest  national_security  responsibility_to_protect  treaties  universalism  precedent  conflict_of_laws  dispute_resolution  human_rights  community  trust  alliances  politics-and-religion  jurisprudence  jurisdiction  downloaded  EF-add 
july 2014 by dunnettreader
Pufendorf - The Whole Duty of Man According to the Law of Nature - Online Library of Liberty
Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, ed. Ian Hunter and David Saunders, with Two Discourses and a Commentary by Jean Barbeyrac, trans. David Saunders (Indianapolis: Liberty Fund, 2003). 5/5/2014. <http://oll.libertyfund.org/titles/888> -- 1717/1735 edition Anglicized political vocabulary from Pufendorf's secular and continental Absolutism even more than Tooke had in 1693. Added some notes from Barbeyrac's 1707 translation to stress religious elements of duties. Original De officiis -- Introduction and Barbeyrac materials extend Hunter's focus on the "civil Enlightenment" that opposed Leibniz's Platonic rationalist metaphysics, the Pufendorf, Thomasius and Huguenot strain erased from intellectual_history by Kant’s metaphysical Enlightenment version of history -- kindle-available -- downloaded pdf to Note
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may 2014 by dunnettreader

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