Legal Philosophies has been written to provide a clear guide to the main topics in a jurisprudence or legal theory course with the novice in mind. It provides summaries of the pertinent arguments within these topics, and of the views of leading theorists. This new edition takes a look at the emergence of "Critical Legal Studies" and "Feminist Jurisprudence", whilst there are new sections on "Moral Truth" and "Communitarianism" (a revived theoretical approach).

What principles explain or justify legal institutions or decisions, thereby transforming coercion to authority? Are there or could there be any such universal principles? Can any philosophical theory account for such principles? How, if at all, do philosophical theories of law and politics apply to particular issues? And finally, what, if any, do such practical applications tell us about general theories and principles? The essays in this volume represent the efforts of an international group of scholars to understand these (...) general aspects of legal philosophy. (shrink)

This chapter contains sections titled: References.

In this essay I argue a particular legal philosophy is committed to a partial and closed view of how philosophical work is conceived. This view produces a legal philosophy that lacks the ability to guide substantive discussions. I argue that methodological legal positivism is not a good way to articulate the development of legal philosophy. Then, I argue that we need to consider the place that legal philosophy should occupy in the (...) global intellectual landscape. In addition, I develop my argument by distinguishing the work of legal-philosophy jurists from that of legal-philosophy philosophers and philosophy philosophers. As a coda, I sketch the criteria in order to conceive analytical legal philosophy from a new perspective.Resumen:En este ensayo defiendo que cierta forma de hacer filosofía jurídica está comprometida con una visión cerrada y parcial de concebir el quehacer filosófico. Esta visión genera una filosofía jurídica intelectualmente pobre y carente de capacidad para guiar debates sustantivos. Defiendo que el positivismo jurídico metodológico no es una buena manera de articular el desarrollo de la filosofía jurídica. Sostengo, además, que es preciso re- flexionar sobre el lugar que debería ocupar la filosofía jurídica en un panorama intelectual global. Para desarrollar mis argumentos, distingo el trabajo de los filósofos del derecho juristas respecto del de los filósofos del derecho-filósofos y los filósofos-filósofos. A modo de coda, bosquejo cuáles serían los criterios que hay que revisar para concebir la filosofía jurídica analítica desde una nueva perspectiva. (shrink)

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

In this paper, I argue that dialogue between legal philosophers and social scientists can be mutually beneficial. Nicola Lacey offers a vision of jurisprudence that supposes as much. I start by setting out my interpretation of her view. I then defend its potential, which she takes for granted, from the challenges posed by, first, an apparent friend—Brian Leiter—and, second, obvious adversaries—Joseph Raz and others. My response proposes an alternative to their conceptions of legal philosophy, one that is (...) consistent with my understanding of the approach to jurisprudence that Lacey recommends. (shrink)

This chapter contains sections titled: Nineteenth‐Century Idealism From Idealism to Nineteenth‐Century Constructivism: The Case of the Historical School From the Turn of the Century to World War II: Disintegration and Reconstruction The Period from 1933 to 1945: “Völkische” Jurisprudence The Period from 1945 to the Present: From Natural Law to Postmodernism References.

This article, written for the forthcoming Oxford Handbook of American Philosophy, offers an overview of the most important American contributions to legal philosophy - American legal realism, law and economics, various critical schools of jurisprudence, Lon Fuller, and Ronald Dworkin - while speculating on what might be distinctive of American legal philosophy. One obvious recurring theme is a focus on practical application in general, and adjudication (especially constitutional adjudication) in particular.

Given statements like these about current developments in intellectualizing about law in America it is an exciting time to look at American legal philosophy. Given the ferment in the law schools and the volume of literature in the law journals it is also a difficult task confidently to extract the main lines of current thought and adequately to assess the significance of current intellectual movements. American lawyers are inclined to point out that there is no such thing as (...) ‘American law’. Rather, in addition to Federal law and the Supreme Court's jurisdiction there are some fifty jurisdictions each with its own Constitution, Legislature and Supreme Court and consequently diversity rather than uniformity is the rule. Equally, the very idea that there is some single, coherent and widely accepted theory of law deserving description as ‘American legal philosophy’ obviously begs all manner of significant questions. (shrink)

This article, written for the forthcoming Oxford Handbook of American Philosophy, offers an overview of the most important American contributions to legal philosophy - American legal realism, law and economics, various critical schools of jurisprudence, Lon Fuller, and Ronald Dworkin - while speculating on what might be distinctive of American legal philosophy. One obvious recurring theme is a focus on practical application in general, and adjudication (especially constitutional adjudication) in particular.

In pre-revolutionary Russia, law was criticized from many points of view: in the name of Christ or the name of Marx, in defense of anarchism or of an idealized autocracy, on behalf of the "Russian soul" or of universal progress towards socialism. Examining the rich tradition of hostility to law, Walicki presents those Russian thinkers who boldly challenged this legacy of anti-legal prejudice by developing liberal philosophies of law, vindicating the value of human rights and rule of law. He (...) discusses six leading theorists--Boris Chicherin, Vladimir Soloviev, Leon Petrazycki, Pavel Novgorodtsev, Bogdan Kistiakovsky, and Sergius Hessen--all of whom viewed law in the context of wider philosophical and social problems. (shrink)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like (...) standard activism), primarily targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like (...) standard activism), primarily targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

This article delineates some of the main issues that are debated by philosophers of law. It explores the connections between legal philosophy and other areas of philosophy, while also seeking to specify the distinctiveness of many of the concerns that have preoccupied philosophers of law. It illustrates its abstract points with examples focused on the separability of law and morality, the nature of the rule of law, the nature of rights, justifications for the imposition of punishment, and (...) the identification of basic legal entitlements. (shrink)

This chapter contains sections titled: Introduction On Law and Morality Legal Rights and Legal Principles Law and Legal Systems Deontic Logic and Legal Philosophy Philosophical Doctrines in Latin America Conclusion References.

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

In this short paper, I argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the study and the practice of law. For even though reasoning and interpretation are at the center of what legal practitioners (...) and legal scholars do, neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Against this background, I suggest that the following three types of questions regarding legal reasoning are especially worthy of serious consideration. The first is that of the possible relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments are to be understood as deductive arguments, or as inductive arguments, or both, and if so how. (shrink)

Preparation for the Study of Theories of Law: Non-Universality of Law, Irreconcilable Epistemologies, Ideological Incipience; Theories in Metaphysical-Rational Epistemology: Divine and Prophetic Theories; Natural Law: Early Hindu, Chinese, Greek, Roman, and Modern; Theories in Idealist Epistemology; Theories in Empiricist Epistemology; Positivist: Early Hindu, Chinese, Later Bentham, Austin, Kelsen, Hart; Historical Von Savigny, Maine, Marx and Engels; Sociological Jhering, Ehrlich, Duguit, Jurisprudence of Interests, Free Law; Psychological Petrazycki; American Realist; Philosophical Framework; Expressions; Scandinavian Realist; Phenomenological; The Critical Legal Studies and (...) its Offshoots: Critical Legal Studies, Feminist Jurisprudence, Critical Race Theory; Legal Polycentricity. (shrink)

My aim in this comment is to provide reasons that highlight the importance of the Spanish translation of Brian Bix’s book: “Jurisprudence, Theory and Context”. My comment stems from the sociology of knowledge and takes as a point of departure an empirical study about the state of the art of legal philosophy in Mexican Law Schools. My conclusion is that Brian Bix’s work shows how Mexican legal philosophy might be incorporated into current jurisprudential debate.Resumen: El objetivo (...) de este comentario es proporcionar algunas razones a favor de la importancia de la publicación de la traducción al español del libro de Brian Bix “Jurisprudence, Theory and Context” para la actualización de la filosofía del derecho en México. Mi comentario es realizado desde la perspectiva de la sociología del conocimiento y tiene como punto de partida un estudio empírico sobre el estado del arte de la filosofía del derecho en las facultades de derecho del país. Mi conclusión es que el trabajo de Brian Bix responde la pregunta fundamental: ¿cómo incorporar a la filosofía del derecho mexicana al contexto global?, que estudiantes, profesores y jóvenes investigadores se plantean actualmente. (shrink)

The international community has long been affected by the political, philosophical and ethical issues surrounding the practice of tyrannicide, defined as the targeted killing of a tyrant. However, there exists no specific international legal instrument that concerns the practice of tyrannicide, rendering the legitimacy of the practice ambiguous. This paper aims to investigate the issue of tyrannicide and offers a number of speculative arguments concerning its legal-philosophical status. It finds that there are essentially two arms of international (...) class='Hi'>legal jurisprudence that may regulate the practice of tyrannicide. The first is largely prohibitive and is based on the derived legal arguments against assassination involving the element ofperfidy, relevant extradition law, provisions in the Hague, Geneva and New York Conventions, and the prohibition on the use of force in the UN Charter. The second position, though far more radical and speculative, is more permissive regarding the moral legitimacy of tyrannicide. This position is based on arguments from the classical international theorists Gentili, Grotius and Vattel, contemporary human rights standards, the principle of humanitarian intervention, the duty to protect, and legal category of hostis hutnani generis. It is argued that though the vast majority of international legal principles are indicative ofthe illegality oftyrannicide, that the practice may nevertheless be philosophically legitimated under humanitarian principles. (shrink)

Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: In what kinds of entities does (...) the law consist, and how are these entities connected such that they form the overarching entity we call “law”? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. This connection can be grasped by means of the concepts of authoritative issuance and social efficacy. The latter includes the concept of coercion or force. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality. To ask about the nature of law is to ask about necessary relations between the concepts of normative meaning, authoritative issuance as well as social efficacy, and correctness of content. (shrink)

The aim of this article 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 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. (shrink)

The “naturalistic turn” that has swept so many areas of philosophy over the past three decades has also had an impact in the last decade in legal philosophy. Methodological naturalists (M-naturalists) view philosophy as continuous with empirical inquiry in the sciences. Some M-naturalists want to replace conceptual and justificatory theories with empirical and descriptive theories; they take their inspiration from more-or-less Quinean arguments against conceptual analysis and foundationalist programs. Other M-naturalists retain the normative and regulative ambitions (...) of traditional philosophy, but emphasize that it is an empirical question what normative advice is actually useable and effective for creatures like us. Some M-naturalists are also.. (shrink)

The state, by V.I. Lenin.--The revolutionary part played by law and the state; a general doctrine of law, by P.I. Stuchka.--The theory of Petrazhitskii: Marxism and social ideology. Law, our law, foreign law, general law, by M.A. Reisner.--The general theory of law and Marxism, by E.B. Pashukanis.--The right deviation in the Communist Party of Bolsheviks. Political report of the Central (Party) Committee to the XVI Congress, 1930, by J.V. Stalin.-- The Soviet state and the revolution in law, by E.B. Pashukanis.--Socialism (...) and law, by P. Yudin.--The fundamental tasks of the science of Soviet socialist law, by A.Y. Vyshinsky.--Report to the XVIII Party Congress, by J.V. Stalin.--The theory of the state and law, by S.A. Golunskii and M.S. Strogovich.--The Soviet state in the war for the fatherland, by A.Y. Vyshinsky.--The relationship between state and law, by I.P. Trainin. (shrink)

This is a collection of essays on themes of legal philosophy which have all been generated or affected by Hart's work. The topics covered include legal theory, responsibility, and enforcement of morals, with contributions from Ronald Dworkin, Rolf Sartorius, Neil MacCormach, David Lyons, Kent Greenawalt, Michael Moore, Joseph Raz, and C.L. Ten, among others.

Notes on Criticism in Legal Philosophy ROBERT S. SUMMERS I. INTRODUCTION Legal philosophers criticize and evaluate as well as originate and expound. ...

Hegel experienced several personal, political, and professional crises during his life. These crises impacted his dense theory about the importance of rational self-reflection in the organic character and evolution of law. The article argues that Hegel’s Preface to the Philosophy of Right manifests how one philosopher came to terms with the personal, social and political crises in which he found himself. In particular, the article outlines the central themes of the Preface and then explicates the important notion of Bildung (...) in Hegel’s theory – an Enlightenment notion that Hegel absorbed from his own formal education. After retrieving Hegel’s reading of the virtues and flaws in Kant’s theory of law, the article then explicates Hegel’s understanding of freedom. The article then reviews the local politics in which Hegel found himself before, during and after Napoleon’s defeat. The article then turns to his professional rivalries with Jacob Fries and Friedrich Savigny. The article argues that the personal animosities shaped parts of his Preface. These complex influences and concerns explain why Hegel waited 20 years to publish his theory of law. Hegel’s Preface comes to terms with the crises of his own times. (shrink)

Basic jurisprudence and legal philosophy (Laws of the South Pacific series, no. 3) - Pub: University of the South Pacific, Institute of Justice & Applied Legal Studies, Suva.

This volume explores the importance of constitutivism for legal studies. Constitutivism is the view that the normative force, or authority, of practical reasons is grounded in principles, capacities, aims, or functions that are essential to, and thus constitutive of, agency. While the implications that the constitutivist approach has on the fundamental meta-ethical disputes and central ethical debates have been extensively explored, the literature on the relations between constitutivism and law remains scarce, unsystematic and sporadic. This collection brings together world-renowned (...) practical philosophers and legal theorists to fill a noticeable gap in the literature. The authors systematically and innovatively address key dimensions of the relationships between constitutivism and the theoretical study of law, as well as programmatically offering novel insights into the conceptual connections between constitutivist claims, fundamental legal concepts and practices, legal issues, and, ultimately, the law as a distinctive concept. The book will be of interest to academics and researchers working in the areas of Legal Philosophy, Legal Theory, Jurisprudence, Moral Philosophy and Meta-ethics. (shrink)

This article examines methodological debates in legal philosophy by focusing on two methodological claims in H. L. A. Hart’s 1961 book, The Concept of Law: that Hart’s theory is both general and descriptive, and an exercise in both linguistic analysis and descriptive sociology. It considers what these claims reveal about Hart’s theoretical ambitions and methodological commitments, and what light they shed on debates in legal philosophy since then. In particular, it discusses the most important elements of (...) Hart’s theory, such as the union of primary and secondary rules in law, the “rule of recognition” as a social rule, and the relationship between legal and moral norms. It also explores several objections to Hart’s approach to the problems of legal philosophy, including one that questions the fruitfulness of the methodology of conceptual analysis. Finally, it analyzes the argument of Hart and all legal positivists that legal systems are social constructs. (shrink)

This is an introductory book on African legal philosophy. The book claims that African legal philosophy exists and is intelligible in the context of African culture, just as every other legal philosophy has its cultural foundation. What law is, how it is thought, how it is interpreted, and how it is applied takes place with thing the parameters of African culture. At a time when the imposition of Western culture on Africans has to be (...) reckoned with, African legal philosophy is, in part, a response to this imposition. It ought to have a liberating effect. (shrink)