This study examined the contemporary ijtihād paradigm, especially in understanding the Islamic law sources, according to Muḥammad Shaḥrūr. This study focused on answering two things, namely Shaḥrūr's thinking in understanding the sources of contemporary Islamic law and compared it with the opinions of 'ulamā (Muslim scholars in Islamic law). An explorative method was used to explore the Shaḥrūr's thinking in understanding the contemporary Islamic law sources, and a comparative method was used to analyse it using 'ulamā's methodology. This research (...) study used an Islamic law methodology (uṣūl al-fiqh) approach. This study concluded that the Shaḥrūr's thinking in understanding the sources of contemporary Islamic law is not comprehensive and less of combination among sources and propositions used by 'ulamā. Etymology understanding is most dominant in his methodology. In addition, there are some misunderstandings on Islamic law concepts raised by 'ulamā. CONTRIBUTION: This research enriched the study of contemporary Islamic law in responding to challenges of different times. Shaḥrūr offered a new paradigm that in al-Quran, the laws have certain limits and they should not be violated. The sunnah was divided into two parts, the changing and the unchanging. Qiyas is an analogy with the problems that happen now with those that happened in the past. And ijma is an agreement from people who have authority in certain matters. (shrink)

This article engages two fundamentally different kinds of so-called natural law arguments in favor of specific moral absolutes: Elizabeth Anscombe's claim that certain actions are known to be intrinsically wrong through intuition, and John Finnis's claim that such actions are known to be wrong because they involve acting directly against a basic human good. Both authors maintain, for example, that murder and contraceptive sexual acts are known to be wrong, always and everywhere, through their respective epistemological lens. This article uses (...) the counter-example of anesthesia to challenge these two approaches to substantiating natural law claims. The paper concludes by rejecting the view shared by Professors Finnis and Anscombe that once one rejects these foundations for moral absolutes, one is left with moral subjectivism. In fact, one is left with moral absolutes of a more restricted nature, which are known philosophically, and with more robust moral absolutes held on religious grounds. Virtues are needed in the moral life, among other reasons, because such norms require discernment and integrity for their correct application. (shrink)

Research in the subject area of economics (as a social science) has defined its ontologie of scientific investigation through economic methodology; a philosophical approach entailing the proviso of empirical evidence and backed by an understanding of human interaction in their natural habitat. The contention of economic methodology being refuted for its non-scientific means of investigation and particularly with the application of Ceteris Paribus (CP) law, has been critically addressed in this article, with Sierra Leone as a case example. (...) Sierra Leone is a complex economy and issues surrounding the assumption of CP has been brought to the fore, with a view of the political economy structure being made transparent so as to make it possible for economists to address critical issues surrounding corruption (exogenous factors), not accounted for in econometric modelling. This is not necessarily that which is considered as the most obvious, with the use of CP concept, for example, the influence of naturally occurring incidents like adverse weather conditions, flooding and earthquakes. (shrink)

This chapter contains sections titled: The Emerging Interest in Methodology Particular Arguments Particular Topics A Concluding Overview References.

Rule of law is a concept that is regularly debated by legal philosophers, often in connection to discussion of the concept of law. In this article, the focus is not on the substance of the conceptual claims, but on the methodologies employed by legal philosophers, investigating seminal articles on the rule of law by Joseph Raz and Jeremy Waldron. I argue that their philosophical argumentations often crucially depend on empirical or legal doctrinal arguments. However, these arguments remain underdeveloped. I explore (...) how these arguments could be linked to approaches related to rule of law in different fields of legal scholarship and investigate how the methodologies of these fields may complement each other. Thus, the article aims to provide an argument for a specific form of triangulation of three kinds of approaches to the rule of law: philosophical, social-scientific and legal doctrinal. This method of triangulation is illustrated by a discussion of the World Justice Project’s Rule of Law Index. (shrink)

In this paper, the methodological character of the internal point of view (IPoV) will be examined. That the IPoV is a method of legal philosophy is not disputed. What is disputed is which point of view a theorist needs to occupy in order to successfully theorise about law. However, the choice between different points of view is based on the participant the theory chooses to study. This means that the participant’s viewpoint is not a method of our theory but an (...) epistemic point through which the object of our study becomes available. If this is the case, different theories simply aim to study different participants. Hence, the criticisms raised on methodological grounds against theories not taking the IPoV or not taking the correct IPoV lose their force. Here, to demonstrate this point, the paper will offer a definition of method from a theory-construction perspective and examine the uses of the IPoV in Hart’s theory since it is the one that introduced the notion in legal philosophy. I will argue that the IPoV cannot play a methodological role for reaching main epistemic aims, but it can be a method for identifying the object of study. (shrink)

The status and nature of the state have been the traditional source of claims about the reality of supra-individual social entities. Kelsen was the dissolver of this problematic, by asserting the identity of state and law, and asserting that law was the authorized actions of individuals. But this required an account of the origin of law itself. He traced this to pre-state law, and the normative order of retribution, which he explained as part of a primitive mentality that depended on (...) an undeveloped ego and conceived causality collectively and magically, to include the dead and nature. The casually responsible individual as understood in modern law resulted from the overcoming of these notions. (shrink)

Leonid Pitamic was convinced that law could not be understood and explored by a single method aiming at a pure object of enquiry. He argued that it was necessary to employ other methods besides the normative one (especially the sociological and axiological methods), which, however, should not be confounded. Methodological syncretism can be avoided by clearly distinguishing between different aspects of law and by allowing the methods to support each other. By following this guideline, and by arguing according to a (...) clear method, we can also open up a space for dialogue and for the juxtaposition of contrasting points of view. (shrink)

This paper explores the methodological foundations of Thomas Piketty's recent book Capital in the twenty-first century. The current literature on Piketty's work lacks consensus as to which paradigm of economic thought Capital fits into. In response to that literature, this paper argues that Piketty offers a new methodological direction for economic science in the form of an analytical 'new-historicism'. The central emphasis of this methodology is an analysis of general dynamic laws on three levels: distribution, institutions, and history. A (...) new-historical methodological framework applies new analytical tools to old economic problems raised by Smith, Ricardo, Marx, and others. This distinguishes Piketty's framework from other contending paradigms or schools of economic thought, thereby alleviating confusion in the current literature surrounding Piketty's book. (shrink)

Until quite recently questions about methodology in legal research have been largely confined to understanding the role of doctrinal research as a scholarly discipline. In turn this has involved asking questions not only about coverage but, fundamentally, questions about the identity of the discipline. Is it (mainly) descriptive, hermeneutical, or normative? Should it also be explanatory? Legal scholarship has been torn between, on the one hand, grasping the expanding reality of law and its context, and, on the other, reducing (...) this complex whole to manageable proportions. The purely internal analysis of a legal system, isolated from any societal context, remains an option, and is still seen in the approach of the French academy, but as law aims at ordering society and influencing human behaviour, this approach is felt by many scholars to be insufficient. Consequently many attempts have been made to conceive legal research differently. Social scientific and comparative approaches have proven fruitful. However, does the introduction of other approaches leave merely a residue of 'legal doctrine', to which pockets of social sciences can be added, or should legal doctrine be merged with the social sciences? What would such a broad interdisciplinary field look like and what would its methods be? This book is an attempt to answer some of these questions. (shrink)

The purpose of this paper is to discuss the methodological foundations of the law and economics movement, with a special emphasis on the role and place of individuals in law and economics. Reviewing the works of the main contributors—the founders, indeed—to the law and economics movement, we show that all of them considered that the analysis of legal phenomena had to start from individual behavior, even as these very behaviors were embedded, to various degrees, though not determined, in legal and (...) institutional frameworks. They all use social, systemic, institutional, and anti-reductionist individualistic methodology. This is not inconsistent or contradictory. Indeed, methodological individualism does not imply to conceive human beings as (isolated) atoms living as if they were suspended in a social vacuum. (shrink)

Taking as its starting-point Guido Calabresi’s latest book – The Future of Law and Economics – the present article aims to explore the often neglected issue of value judgments and normativity in Law and Economics. I will show the importance of enquiring Calabresi’s methodological distinction between Law and Economics and Economic Analysis of Law and the related bilateralism thesis in order to understand the problematic relationship between methodological value judgments and ethical value judgments, the ‘distance’ between Calabresi and Posner and (...) the problematic notion of reformism. Then I will try to introduce a different notion of normativity. I will also show the existence of an unresolved tension in Calabresi’s methodological discourse between a positive approach, which seems to be privileged in this book, and his insistence on the inevitability of value judgments in economic analysis. Finally, I clarify the reasons for the ‘ignorance’ of values by the economist by distinguishing between economists’ “lack of self-awareness”, economists’ idolatry and the economists’ lenses. (shrink)

"Law and Economics has become an established field worldwide and it may be argued that it is one of the few examples of a successful interdisciplinary project. This book explores whether, or to what extent, that interdisciplinarity has indeed been a success. It provides insights on the foundations and methods, achievements and challenges of Law and Economics, at a time when both the continuing challenges to academic economics and the growth of empirical legal studies raise questions about the identity and (...) possible further developments of the project. Through a combination of reflections on long-term trends and detailed case studies on current developments, contributors to this volume analyse whether and in which sense Law and Economics is a successful interdisciplinary endeavour. Inspired by insights from the philosophy of social sciences, the book shows how concepts travel between legal scholarship and economics, how they change meanings when applied elsewhere, how economic theories and models inform, and transform, judicial practice, and addresses whether the transfers of knowledge between economics and law are symmetrical exchanges between the two disciplines"--. (shrink)

Methodological naturalism is the assumption or working hypothesis that understanding nature (the physical world including humans and their thoughts and actions) can be understood in terms of unguided laws. There is no need to Suppose interventions (miracles) from outside. It does not commit one to metaphysical naturalism, the belief that there is nothing other than nature as we can see and observe it (in other words, that atheism is the right theology for the sound thinker). Recently the Intelligent Design movement (...) has been arguing against methodological naturalism, and in this project they have been joined by the Christian philosopher Alvin Plantinga. In this paper I examine Plantinga’s arguments and conclude not only that they are not well taken, but that he does no good service to his religion either. (shrink)

The question of whether there are laws in ecology is important for a number of reasons. If, as some have suggested, there are no ecological laws, this would seem to distinguish ecology from other branches of science, such as physics. It could also make a difference to the methodology of ecology. If there are no laws to be discovered, ecologists would seem to be in the business of merely supplying a suite of useful models. These models would need to (...) be assessed for their empirical adequacy but not for their ability to capture fundamental truths, or the like. If, on the other hand, ecology does have laws, this prompts further questions about what these laws are and why even the best candidates for ecological laws fall short of what might be expected of laws. (shrink)

The ramifications of modernity and the resultant challenges compelled Ottoman intellectuals and state officials to contemplate matters like as innovation, progress, and change. The pursuit of remedies to eradicate political, military, and economic deficiencies was similarly evident in the legal domain. Ziya Gökalp articulated his perspectives on the origins, societal efficacy, and adaptability of law within the framework of the Turkism movement, presenting several methodologies that redefined the interplay among religion, law, society, and state. The most characteristic method among them (...) is the internal sociological methodology of law, which he equated with his own identity. Other Turkist figures of the time supported this theory, which aimed to bring dynamism to Islamic law in line with modern demands and changing conditions, as well as to establish a national law-society-state relationship. Another approach put forward by Gökalp was based on the distinction between legal (qāḍāī) and ethical/spiritual (diyānī) aspects that were established in traditional Islamic law. In Gökalp's intellectual life that extends from the last years of the Ottoman Empire to the first years of the Republic, two different stages stand out. Gökalp, who tended to restructure jurisprudential concepts with an original interpretation in the late Ottoman period, became a persistent defender of the distinction between religion and state as well as religion and law in the Republican period. However, he did not deny the role of religion in the existence of the nation and emphasized the place of religious institutions, such as the office of Sheikhul-Islam, in the Republican period. Although he took the traditional jurisprudential perspectives into consideration, he could not escape from the criticism of his fellow intellectuals such as İzmirli İsmail Hakkı, who represented the traditional understanding. This article addresses Ziya Gökalp's views that he developed on fiqh and sociology in the Turkish modernisation process and sheds light on the possible reflections of these views on the Republican period. (shrink)

The Methodology of Empirical Macroeconomics stakes out a pragmatic middle-ground between traditional, prescriptive economic methodology and recent descriptive methodology. The former is sometimes seen as arrogantly telling economists how to do their work and the latter as irrelevant to their practice. The lectures are built around a case study of a concrete example of macroeconomic analysis. They demonstrate that economic methodology and the philosophy of science offer insights that help to resolve the genuine concerns of macroeconomists. (...) Some examples of questions addressed include: What is the relationship between theoretical models and empirical observations? What is the relevance of macroeconomics to policy? Should macroeconomics be viewed as a special case of microeconomics? What is the place of long-standing philosophical issues in macroeconomics, such as the scope and nature of economic laws, the role of idealizations, methodological individualism, and the problem of causality? (shrink)

This paper presents a methodology to design and implement programs intended to decide cases, described as sets of factors, according to a theory of a particular domain based on a set of precedent cases relating to that domain. We useDialectical Frameworks, a recent development in AI knowledge representation, as the central feature of our design method. ADFs will play a role akin to that played by Entity–Relationship models in the design of database systems. First, we explain how the factor (...) hierarchy of the well-known legal reasoning system CATO can be used to instantiate an ADF for the domain of US Trade Secrets. This is intended to demonstrate the suitability of ADFs for expressing the design of legal cased based systems. The method is then applied to two other legal domains often used in the literature of AI and Law. In each domain, the design is provided by the domain analyst expressing the cases in terms of factors organised into an ADF from which an executable program can be implemented in a straightforward way by taking advantage of the closeness of the acceptance conditions of the ADF to components of an executable program. We evaluate the ease of implementation, the performance and efficacy of the resulting program, ease of refinement of the program and the transparency of the reasoning. This evaluation suggests ways in which factor based systems, which are limited by taking as their starting point the representation of cases as sets of factors and so abstracting away the particular facts, can be extended to address open issues in AI and Law by incorporating the case facts to improve the decision, and by considering justification and reasoning using portion of precedents. (shrink)

The field of socio-legal research has encountered three fundamental challenges over the last three decades - it has been criticized for paying insufficient attention to legal doctrine, for failing to develop a sound theoretical foundation and for not keeping pace with the effects of the increasing globalization and internationalization of law, state and society. This book examines these three challenges from a methodological standpoint. It addresses the first two by demonstrating that legal sociology has much to say about justice as (...) a kind of social experience and has always engaged theoretically with forms of normativity, albeit on its own empirical terms rather than on legal theory's analytical terms. The book then explores the third challenge, a result of the changing nature of society, by highlighting the move from the industrial relations of early modernity to the post-industrial conditions of late modernity, an age dominated by information technology. It poses the question whether socio-legal research has sufficiently reassessed its own theoretical premises regarding the relationship between law, state and society, so as to grasp the new social and cultural forms of organization specific to the twenty-first century's global societies. (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 book shows that Hauriou's positivist and pragmatic jurisprudence and social theory, as well as their application to the study of institutions, is satisfactorily supported by his idealistic philosophy. The nine chapters first locate Hauriou's influences, then situate his disciplinary methodologies within methodology in general. The central chapters concern each of the three methodologies in turn.

Alex Sarch’s recent book, Criminally Ignorant: Why the Law Pretends We Know What We Don’t is a wonderfully rich work.1 Sarch provides and defends an explanatorily powerful theory of criminal culpab...

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what procedure or method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. -/- Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask timeless questions, but its methods (...) need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law---where “we” might refer to all people, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones. (shrink)

Muslim legal culture is becoming more relevant to modern Ukraine, which can be explained, on the one hand, by the nature of Islam and, on the other, by the peculiarities of its current state in our country. After all, the internal logic of Islam, as a universal system that encompasses both religious and secular life, as one of the components of the awakening of Islam, involves recourse to Sharia, a strict adherence to which is an unmistakable criterion for Muslims of (...) deep religious faith. On the other hand, in addition to religious revival, in the lives of Muslims, social and economic, political, national and cultural problems need to be addressed and secular. It is secular relations that led to the formation of Muslim jurisprudence and its subsequent evolution. (shrink)

The Reformation, it has been said, changed the course of history. Most people would agree. At the very least, agree or not, they would hold the proposition to be one worth considering. They would be unlikely to reject it out of hand as incapable of being either true or false because it had no meaning. For, of course, “everybody knows” what the Reformation was and, elaborating a little, we can make clear what we meant by changing the course of history. (...) Yet it is just statements of this sort that cause much methodological wrangling. Their controversial nature is due, in large part, to controversy over the status of such terms as “the Reformation” and, generally, group or macroscopic concepts. Since not only history, but sociology, political science, social psychology, and economics also widely use concepts referring to groups and their properties, rather than to individuals, the controversy has wide ramifications. And because there are, as it were, so many vested interests involved, the dispute also tends to acquire an ideological tone not altogether consonant with dispassionate inquiry. Bad temper and mutual recrimination in scientific discussion are generally a sign that ideological defenses are being shored up. Just possibly, a philosopher whose substantive concern in any empirical field is minimal may hope to be considered above the battle, as one who, having no private axe to grind, can be concerned only with clarifying the logical issues involved. In this hope, I wish to explore as systematically as possible the tangled web of issues woven about the status of group concepts and their relationship to those referring to individuals. Intertwined in this controversy are two different issues. One has to do with the nature of the terms or concepts of social science; the other with the nature of its laws and theories and their relationship in turn to those in other areas. The first issue is one of meaning, the second of reduction. Success in unsnarling the various strands of this web may alone help abate the fury of the controversy. (shrink)

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right (...) answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy. (shrink)

So why must a scientist proceed in accordance with methodological naturalism? Michael Ruse suggests that methodological naturalism or at any rate part of it is true by definition: Furthermore, even if Scientific Creationism were totally successful in making its case as science, it would not yield a scientific explanation of origins. Rather, at most, it could prove that science shows that there can be no scientific explanation of origins. The Creationists believe that the world started miraculously. But miracles lie outside (...) of science, which by definition deals only with the natural, the repeatable, that which is governed by law.37 By definition of the term 'science' one supposes; Ruse apparently holds there is a correct definition of 'science', such that from the definition it follows that science deals only with what is natural, repeatable, and governed by law. (Note that this claim doesn't bear on the suggestions that a Christian scientist can propose hypotheses involving such 'religious' doctrines as, say, original sin, and can evaluate the epistemic probability of a scientific hypothesis relative to background belief.. (shrink)

Semmelweis’ discovery of the etiology of childbed fever has long attracted the attention of historians of medicine and biographers. In recent years it has also become of increasing interest to philosophers. In this paper I discuss the interpretation of Semmelweis’ methodology from the viewpoint of the inference to the best explanation and argue that Popperian methodology is better at capturing the dynamics of the growth of knowledge. Furthermore, I criticize the attempts to explain the failure of Semmelweis to (...) have his discovery accepted on the basis of the Kuhnian concept of paradigms, and warn that this view may endorse dogmatism as the norm The Kuhnian position also raises the problem of the authoritarian nature of scientific institutions which defend a paradigm against unorthodox, rebellious views, such as in the case of Semmelweis. Popperian philosophy is seen as a challenge to promote a link between an open society and open science with its main aim being to cherish a free critical spirit. (shrink)

This paper discusses Ronald Allen’s article, Naturalized Epistemology and the Law of Evidence Revisited, and reflects on how epistemology can contribute to our understanding of the evidentiary proof process. I first situate Allen’s critique of recent philosophical scholarship, distinguishing between general theoretical accounts of proof (including the theory that Allen and I have defended), on one hand, and the applications of specific epistemological concepts or issues to law, on the other. I then present a methodological picture that diverges in some (...) respects from the one that emerges from Allen’s critique. In discussing this alternative methodological picture, I explain how epistemology can contribute to legal evidence and proof while avoiding the problems that Allen identifies. (shrink)

The paper is a study of the establishment of the theoretical, human and institutional presuppositions of the development of modern methodology of sciences in Slovakia 1946-1962. It focuses particularly on the examnination of V. Filkorn´s scientific and educational work, who was drawing on the previous and contemporary activity of S. Felber and I.Hrušovský. In that time V. Filkorn published his first essential works and developed an original conception of the methodology of sciences with its special view of the (...) method of science, scientific law, and the relationship between logic and dialectics. It is defined as logical analysis of the building of the system od science by means of modern logic and an articulated theory of categories. (shrink)

Methodological individualists often claim that any social phenomenon can ultimately be explained in terms of the actions and interactions of individuals. Any Nagelian version of methodological individualism requires that there be bridge laws that translate social statements into individualistic ones. We show that Nagelian individualism can be put to logical scrutiny by making the relevant social and individualistic languages fully explicit and mathematically precise. In particular, we prove that the social statement that a group of (at least two) agents performs (...) a deontically admissible group action cannot be expressed in a well-established deontic logic of agency that models every combination of actions, omissions, abilities, and obligations of finitely many individual agents. (shrink)

There are some distinct methodological challenges, and possible pitfalls, for neuroethics when it evaluates neuroscientific results and links them to issues such as moral or legal responsibility. Some problems emerge in determining the requirements for responsibility. We will show how philosophical proposals in this area need to interact with legal doctrine and practice. Problems can occur when inferring normative implications from neuroscientific results. Other problems arise when it is not recognized that data about brain anatomy or physiology are relevant to (...) the ascription of responsibility only when they are significantly correlated with the psychological capacities contemplated by the legal formulations of responsibility. We will demonstrate this by considering two significant cases concerning psychopathy. Some paradigms that aim at measuring higher-order capacities, such as moral understanding, have limited validity. More robust paradigms for the study of learning in restricted controlled conditions, on the other hand, have limited ecological validity across individuals and context to be of any use for the law. (shrink)

To understand H.L.A. Hart's general theory of law, it is helpful to distinguish betweensubstantiveandmethodologicallegal positivism. Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is the view that legal theory can and should offer a normatively neutral description of a particular social phenomenon, namely law. Methodological positivism holds, we might say, not that there is no necessary connection between morality and law, but rather that there is no (...) connection, necessary or otherwise, between morality and legal theory. The respective claims of substantive and methodological positivism are, at least on the surface, logically independent. Hobbes and Bentham employed normative methodologies to defend versions of substantive positivism, and in modern times Michael Moore has developed what can be regarded as a variant of methodological positivism to defend a theory of natural law. (shrink)

Professor Franklin shows how the humanist approach of Jean Bodin and other French jurists of the 16th century led to a break, at least in principle, with the intellectual authority of Roman law and to the attempt to reconstruct juristic science through a comparison and synthesis of all the juridical experience of the most famous states.

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that (...) methodology is not a resource capable of offering an independent assessment of the merits of competing theories.Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.A number of ancillary matters are discussed in the essay including: semantic approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law’s Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz’s split theory of legal reasoning and law. (shrink)

In the period preceding the establishment of the first sociology department at the University of Baghdad, the works of Abdul Fattah Ibrahim and Abdul Jabbar Arim played a significant role. These scholars are regarded as pioneers of this pre-foundational phase. Although they did not conduct any field research, the methodologies they advocated for analysing and critiquing Iraqi social reality were well-defined. In Abdul Fattah Ibrahim's first specialised book on sociology, he presents Darwin's theory of evolution as "the foundational principle upon (...) which modern sociology is based." He defines sociology as "the study of society in its evolution according to the law of the survival of the fittest, with the goal of enhancing its ability to endure.". (shrink)

In this paper we study some of the methodological problems associated with the development of the various theoretical schema devised to explain the phenomenon of superfluidity. The physical behaviour of supercooled helium defied explanation in terms of the known atomic laws for helium and their ‘natural’ extrapolations. We show that the basic conceptual difficulties involved were circumvented by the development of intermediate intermediaries through a process of contextual reinterpretation.

Scholars have given attention to the question of whether morally-neutral philosophical analysis of the concept ‘law’ is a sustainable project. Less at- tention has been given to whether the methodological approach that relies on morally-neutral description and explanation, rather than on philosophical analysis, is a defensible project. My primary goal in this paper is to argue that although descriptive/explanatory theorizing is a logically possible project, it is not a defensible one. I claim that there is no reason to insulate legal (...) theorizing from moral arguments. Indeed, it is desirable for legal theorists to employ moral considerations because it is only through moral argument that we can answer important questions we care about with respect to law.Resumen:Muchos teóricos han prestado su atención a la pregunta sobre si el análisis filosófico moralmente neutral del concepto ‘derecho’ es un proyecto sostenible. En cambio, se ha prestado menos atención a discutir si el en- foque metodológico basado en descripciones y explicaciones moralmente neutrales, en lugar del análisis filosófico, es un proyecto defendible. Mi objetivo principal en este artículo es argumentar que, si bien la labor teórica descriptiva/explicativa es un proyecto lógicamente posible, no es, sin embargo, defendible. Yo sostengo que no hay razón para aislar la labor teórico-jurídica de los argumentos morales. Por el contrario, es deseable que los teóricos del derecho empleen consideraciones morales, debido a que es sólo a través de argumentos morales como podemos responder las preguntas que nos preocupan en relación con el derecho. (shrink)

Whether all the Platonic dialogues are parts of an inconsistent or consistent body is a controversial subject of philosophy. Indeed, though in form all the texts are written dialogically, in content, one might recognize methodological alterations in Platonic thought from the 1st book of The Republic to later dialogues such as The Statesman and The Laws. However, how much this methodological alteration might affect the content of Plato’s political philosophy, the relation between the rupture in the method of contemplation on (...) the one hand and the structure of the Platonic ideal Polis is still a subject not seriously explored yet. Exploring the characteristics of the three different methods used in Plato’s different dialogues, the present study attempts to show that in the light of the methodological alteration, one might realize how Platonic understanding of the good society has changed from The Republic to The Statesman and The Laws. (shrink)

This contribution addresses the relation between (macro) hypotheses about social collectives (ranging from dyads to societies) on the one hand and (micro) hypotheses about individual actors on the other. This relation is the subject of methodological individualism (MI) and micro–macro modeling. Their ideas are first illustrated with an example: it is shown how the hypothesis that inequality is related to societal political violence can be explained by considering theories about individuals (i.e. micro theories) and relations between the macro and micro (...) factors (bridge assumptions). Next the components of micro–macro explanations are analyzed in detail. One question is whether macro and micro propositions and bridge assumptions are lawful statements, causal singular hypotheses or only correlations. It is shown that bridge assumptions can be empirical and analytical (i.e. logically true) statements. An example of the former is the impact of inequality on individual political deprivation, an example of the latter is the aggregation of individual crimes to the crime rate. After outlining the major arguments for micro–macro modeling and methodological individualism I illustrate their wide application in the social sciences. I conclude with a discussion of possible problems of micro–macro modeling and MI and a summary of the program of MI. (shrink)

The last decade has witnessed a particularly intensive debate over methodological issues in legal theory. The publication of Julie Dickson's Evaluation and Legal Theory (2001) was significant, as were collective returns to H.L.A. Hart's 'Postscript' to The Concept of Law. While influential articles have been written in disparate journals, no single collection of the most important papers exists. This volume - the first in a three volume series - aims not only to fill that gap but also propose a systematic (...) agenda for future work. The editors have selected articles written by leading legal theorists, including, among others, Leslie Green, Brian Leiter, Joseph Raz, Ronald Dworkin, and William Twining, and organized under four broad categories: 1) problems and purposes of legal theory; 2) the role of epistemology and semantics in theorising about the nature of law; 3) the relation between morality and legal theory; and 4) the scope of phenomena a general jurisprudence ought to address. (shrink)

The essays in this volume of the Australasian Studies in History and Philosophy of Science series are devoted to the subjects of natural kinds, scientific ...

Lawyers pretend as if the process of application of laws, as well as its outcome, could be an analytic-deductive derivation; especially law students learn that legal decision-making is primarily a logic process. But we know that application of laws depends on analytic-logical as well as on voluntaristic (wilful) elements. Exact relations between these components are unknown and will be unknown. At most German law schools students as the most important imperative tool learn the so called “Auslegung” through the use of (...) theoretical instruments, which do not reflect the interpretation of law practice. These mentioned causes result in irrationality of legal decision-making. In order to achieve more rationality in the process and result of legal decision-making, the contribution makes four suggestions regarding legal methodology and legal education. These proposals consist of few long-term pragmatic approaches to more rationality of legal decision-making. (shrink)

Natural law ethicists have typically argued that homosexual activity is immoral because it is "unnatural." Recent scientific information and theories, on the other hand, have been used to challenge this description and to provide moral backing for sexual activity among homosexuals. This paper traces some of the recent scientific claims about possible natural bases of homosexuality and then examines what significance these claims might have for several contemporary forms of natural law ethics. It argues that natural law assessments ought to (...) develop a careful and informed account of whether or to what extent homosexual activity can contribute to integral human flourishing rather than focusing on its status as " natural " or "unnatural" per se. (shrink)

Web legal information retrieval systems need the capability to reason with the knowledge modeled by legal ontologies. Using this knowledge it is possible to represent and to make inferences about the semantic content of legal documents. In this paper a methodology for applying NLP techniques to automatically create a legal ontology is proposed. The ontology is defined in the OWL semantic web language and it is used in a logic programming framework, EVOLP+ISCO, to allow users to query the semantic (...) content of the documents. ISCO allows an easy and efficient integration of declarative, object-oriented and constraint-based programming techniques with the capability to create connections with external databases. EVOLP is a dynamic logic programming framework allowing the definition of rules for actions and events. An application of the proposed methodology to the legal web information retrieval system of the Portuguese Attorney General’s Office is described. (shrink)

The Oxford Handbook of Law and Economics provides a broad overview of numerous current and developing topics in the field of law and economics. With contributions by over one-hundred experts in the field within one work, the volume covers issues ranging from as far as Law and Neuroeconomics to European Union Law and Economics to Feminist Theory and Law and Economics. Its detail and breadth make it an invaluable reference book and contribution to the field.