This book discusses how Plato, one the fiercest legal critics in ancient Greece, became – in the longue durée – its most influential legislator. Making use of a vast scholarly literature, and offering original readings of a number of dialogues, it argues that the need for legal critique and the desire for legal permanence set the long arc of Plato’s corpus—from the Apology to the Laws. Modern philosophers and legal historians have tended to overlook the (...) fact that Plato was the most prolific legislator in ancient Greece. In the pages of his Republic and Laws, he drafted more than 700 statutes. This is more legal material than can be credited to the archetypal Greek legislators—Lycurgus, Draco, and Solon. The status of Plato’s laws is unique, since he composed them for purely hypothetical cities. And remarkably, he introduced this new genre by writing hard-hitting critiques of the Greek ideal of the sovereignty of law. Writing in the milieu in which immutable divine law vied for the first time with volatile democratic law, Plato rejected both sources of law, and sought to derive his laws from what he called ‘political technique’. At the core of this technique is the question of how the idea of justice relates to legal and institutional change. Filled with sharp observations and bold claims, Platonic Legislations shows that it is possible to see Plato—and our own legal culture—in a new light “In this provocative, intelligent, and elegant work D. L. Dusenbury has posed crucial questions not only as regards Plato’s thought in the making, but also as regards our contemporaneity.”—Giorgio Camassa, University of Udine “There is a tension in Greek law, and in Greek legal thinking, between an understanding of law as unchangeable and authoritative, and a recognition that formal rules are often insufficient for the interpretation of reality, and need to be constantly revised to match it. Dusenbury’s book illuminates the sophistication of Plato’s legal thought in its engagement with this tension, and explores the potential of Plato’s reflection for modern legal theory.”—Mirko Canevaro, The University of Edinburgh. (shrink)

Mutually critical conversations between theology, ethics, and law have been underdeveloped with respect to juvenile justice. I appropriate recent theological work on the rights and agency of children to critique adultcentric approaches to juvenile justice. I focus on recent trends in juvenile justice, including sentencing juveniles to life without the possibility of parole. In developing my polemic against such policies, I analyze Graham v. Florida and the UN Convention on the Rights of the Child and their implications for juvenile (...) justice. The final section constructively proposes juvenile justice reforms and advocates for the elimination of juvenile life sentences without parole. (shrink)

Originally published thirty years ago, Critique of the Legal Order remains highly relevant for the twenty-first century. Here Richard Quinney provides a critical look at the legal order in capitalist society. Using a traditional Marxist perspective, he argues that the legal order is not intended to reduce crime and suffering, but to maintain class differences and a social order that mainly benefits the ruling class. Quinney challenges modern criminologists to examine their own positions. As "ancillary agents (...) of power," criminologists provide information that governing elites use to manipulate and control those who threaten the system. Quinney's original and thorough analysis of "crime control bureaucracies" and the class basis of such bureaucracies anticipates subsequent research and theorizing about the "crime control industry," a system that aims at social control of marginalized populations, rather than elimination of the social conditions that give rise to crime. He forcefully argues that technology applied to a "war against crime," together with academic scholarship, is used to help maintain social order to benefit a ruling class. Quinney also suggests alternatives. Anticipating the work of Noam Chomsky, he suggests we must first overcome a powerful media that provides a "general framework" that serves as the "boundary of expression." Chomsky calls this the manufacture of consent by providing necessary illusions. Quinney calls for a critical philosophy that enables us to transcend the current order and seek an egalitarian socialist order based upon true democratic principles. This core study for criminologists should interest those with a critical perspective on contemporary society. (shrink)

Rent control is an economic abomination. It diverts investments away from residential rent units, it leads to their deterioration, it is responsible for urban decay such as in the South Bronx, it does not help poor tenants, it is a horrendous means of income redistribution. Yet this economic regulation is beloved of intellectuals (hot beds of pro rent control sentiment are Berkeley, Ann Arbor and Cambridge) particularly in the legal and philosophical communities. The present article is dedicated to an (...) exploration and rejection of the arguments in behalf of rent control which emanate from this source. (shrink)

These critiques and the ways of thinking made possible in their wake tend to be called post-modern, a term which is vague and even a little irritating. It would be more precise and descriptive to speak instead of post- Enlightenment critiques of reason. Hume is arguably the first post-Enlightenment thinker, and after Hume these critiques of reason developed further in Hegel, Marx, Kierkegaard, and Nietzsche, and were then taken up by many lesser, 20th century thinkers. If the Enlightenment was the (...) age in which human reason in the form of argument and evidence superseded authority in the form of church and state, in the grounding of scientific, philosophical, moral, and political claims, then the critiques of reason I want to talk about are all post-Enlightenment. (shrink)

This paper is divided into two parts. In the first one I distinguish between weak and strong Anti-Archimedeanisms, the latter being the view that metaethics, just as any other discipline attempting to work out a second-order conceptual, metaphysical non-committed discourse about the first-order discourse composing normative practices, is conceptually impossible or otherwise incoherent. I deal in particular with Ronald Dworkin’s famous exposition of the view. I argue that strong Anti-Archimedeanism constitutes an untenable philosophical stance, therefore making logical space for the (...) practice of a discipline such as metaethics—conceived as ethically neutral. This makes space, concurrently, for neutral conceptual jurisprudence. In the second part of the article, I attempt to show two things. On the one hand, that Dworkin’s widely discussed ‘challenge of disagreements’ to legal positivism is founded upon strong Anti-Archimedeanism. On the other hand, that having rejected strong Anti-Archimedeanism we should consequently reject the challenge as a serious challenge to positivism. This move, of course, does not thereby imply that accounting for legal disagreements is not an important jurisprudential task. But it marks—contra Dworkin—that there is no principled or a priori impossibility of doing so within a positivist framework. (shrink)

This book is an interpretation and critique of Habermas's philosophy as contained in his book, Between Facts and Norms. The main argument is that while Habermas does succeed in laying out foundations, conceptual and methodological, for the philosophy of law, the book is flawed by a fundamental contradiction between a democracy ruled by law and capitalism.

In lieu of an abstract, here is a brief excerpt of the content:Eve W. Stoddard REASON ON TRIAL: LEGAL METAPHORS IN THE CRITIQUE OF PURE REASON 6 6 r I 1WO things fill the mind with ever new and increasing admi_I_ ration and awe, the oftener and more steadily we reflect on them: the starry heavens above me and the moral law within me." ' These are perhaps Kant's most well-known and oft-repeated words. They reflect not only the (...) profound feeling that underlies his technical and abstruse treatises, but also his characteristic preoccupation with law. The "starry heavens" are a synecdoche both for the wonder of nature as we perceive it in all its multiplicity, and for the marvel of science's ability to reduce, order, and subdue that infinite multiplicity into a few elegant laws. These two types of law, natural and moral, define the focus of Kant's critical philosophy, and metaphors drawn from jurisprudence pervade all three critiques. In the context of controversial statements on the role of metaphor in philosophical texts by Jacques Derrida, Paul Ricoeur, and Richard Rorty, I will analyze the legal metaphors in the prefaces and Transcendental Deductions of the Critique ofPure Reason. My goal in engaging Kant's texts in this controversy over metaphor is twofold: on the one hand to assess experimentally the value of these positions on metaphor in the history of philosophy, and, on the other hand, to examine the relations between critical conceptualization and insurgent metaphoricity in Kant's carefully elaborated and systematized text. In a textwhose key words are "universal and necessary for all possible experience," contingentand ambiguous metaphors might be expected to cause problematic unravelings. Richard Rorty has argued recently that "the history ofscience, culture and politics" should be viewed "as a history of metaphor rather than of discovery." 2 He compares the creations of new vocabularies to the 245 246Philosophy and Literature invention of "new tools" ("CL," p. 5), alluding to "Nietzsche's definition of truth as a mobile army of metaphors" (p. 6). From Plato's figures of the world as cave and the mind as charioteer with unruly horses, we shift to Locke's view of mind as tahda rasa and Descartes's description of the world as a machine. Rorty's paradigm of cultural history as a history of metaphor enters into an earlier, unresolved debate between Jacques Derrida and Paul Ricoeur over the relationship between metaphor and philosophical discourse. Like Derrida, Rorty follows Nietzsche's claims about metaphor in the history of philosophy, a view Ricoeur wants to disprove so that he can recover the privileged univocity of speculative discourse. However Rorty has nothing in common with die complexity and "invaginated" ambiguities, the dazzling multivocity of Derrida's writing on the economics of metaphor. Although Rorty appears at first to agree with Derrida that there is no truth or reality apart from the linguistic tropes which dominate different epochs and cultures, he retains a metaphysical distinction between literal reference and figurative play. Rorty adopts Donald Davidson's theory that metaphors do not have "meaning" precisely because diey have no place in the language game into which they are inserted. They produce an effect, but it is not meaning: "One can only savour it or spit it out"; it is not a " 'truth-value candidate' " ("CL," p. 6). However, through repeated use, the metaphor will find a role in the language game; dying as a metaphor, it will live as a literal statement. Therefore Rorty agrees with Ricoeur that a moribund metaphor is no longer a metaphor, but a literally functioning segment of discourse. Thus despite his initial move toward a Derridean, or atleast Nietzschean, position, Rorty ultimately takes a stand consonant with Ricoeur's desire to rescue speculative discourse from the unruliness of metaphor. Considering Rorty's celebration of Freud in an article on "The Contingency of Selfhood," 3 his failure to consider the role of unconscious associations and overdetermination in the writing and reading of texts is surprising. Dead or alive, a metaphor brings with it a host ofpersonal and public, conscious and unconscious, new and traditional associations that become juxtaposed against a similar number of associations connected with the signifying chain into which the metaphor has been inserted. In... (shrink)

Les Critical Legal Studies et ses divers tributaires ont fortement marqué la conscience juridique contemporaine. Ces notions ne sont plus simplement le domaine d’un collectif de juristes nord-américains, mais font désormais partie du discours académique transnational et influencent la formation de divers projets et demandes politiques, malgré leur impact négligeable sur la pratique juridique traditionnelle. Les mouvements de type féministe, racial, LGBTQ+ et postcolonialiste ont profité largement de l’énergie intellectuelle et de l’engagement inhérent à ses analyses critiques. En outre, (...) ces façons d’envisager le droit et de faire de la politique trouvent leur écho en plusieurs juridictions. Des manifestations parallèles, allant au-delà des États-Unis, mettent en évidence la portée de ces idées. Cet article a pour but de décrire, de façon succincte, l’évolution du CLS allant d’une série de critiques précises sur le droit états-unien jusqu’à des discours généralisés, répandus dans divers circuits transnationaux de pensée et d’action. (shrink)

The paper investigates phenomenology's possibilities to describe, reflect and critically analyse political and legal orders. It presents a "toolbox" of methodological reflections, tools and topics, by relating to the classics of the tradition and to the emerging movement of "critical phenomenology," as well as by touching upon current issues such as experiences of rightlessness, experiences in the digital lifeworld, and experiences of the public sphere. It is argued that phenomenology provides us with a dynamic methodological framework that emphasizes correlational, (...) co-constitutional, and interrelational structures, and thus pays attention to modes of givenness, the making and unmaking of "world," and, thereby, the inter/subjective, affective, and bodily constitution of meaning. In the case of political and legal orders, questions of power, exclusion, and normativity are central issues. By looking at "best practice" models such as Hannah Arendt's analyses, the paper points out an analytical tool and flexible framework of "spaces of meaning" that phenomenologists can use and modify as they go along. In the current debates on political and legal issues, the author sees the main task of phenomenology to reclaim experience as world-building and world-opening, also in a normative sense, and to demonstrate how structures and orders are lived while they condition and form spaces of meaning. If we want to understand, criticize, act, or change something, this subjective and intersubjective perspective will remain indispensable. (shrink)

In this first book-length liberal reply to CLS, Andrew Altman systematically examines the philosophical underpinnings of the CLS movement and exposes the deficiencies in the major lines of the CLS argument against liberalism.

The notion of reasonable interpretation of legal texts, as opposed to the absurd or unacceptable interpretation, is presupposed in different legal theories as the fundamental basis of legal rationality and as a clear limitation to chaotic behaviour by courts. This article argues that the ever-present notion of reasonability is not a useful descriptive tool for understanding legal practices or how legal institutions work. The article builds on radical legal realism perspective in order to develop (...) two arguments supporting this claim. First, it argues that, from an empirical point of view, the complexity of contemporary law and its multiple layers of normativity do not allow for the description of what a reasonable interpretation is, since no coherent universal interpretative community can be envisioned. Second, from a conceptual point of view, it argues that describing the references interpreters make to reasonability as references to a semantic object—that is, to some kind of universal “reasonableness”, a model of reasonable behaviour or rationality—is not a reliable way of understanding judicial practice in a certain legal context. This is the case because, as an internal justification discourse, the appeal to reasonability by the interpreter has no bearing on truth or correctness. Nothing prevents courts from cherry-picking a meaning for reasonability in each case, using it as the justification to solve similar cases in different, sometimes contradictory ways. In short, the concept of reasonability cannot be taken, in itself, as an instrument of legal analysis. As a prescriptive discourse, it can merely be one of the objects legal science intends to observe and explain. Its discursive functions—not its semantic references—, as part of a strategy to convince and to justify, are the only observable elements that can sustain a coherent falsifiable description by legal science. (shrink)

A century after the publication of Evgeny Pashukanis's pivotal book General Theory of Law and Marxism, this collection presents a comprehensive account and analysis of his key concept of legal form. Evgeny Pashukanis's General Theory, born amidst the fervour of the first socialist revolution, remains still a crucial reference point in Marxist theories of the law and critical legal theory. Its theoretical depth paved the way for new understandings of the relationship between Marxism and the law. Its crucial (...) virtue continues to be, even after a century, the ability to articulate epochal concerns in the context of a socialist revolution that turned hitherto theoretical problems into dilemmas of practice. This book returns to Pashukanis's main concept: 'legal form'. Through this jurisprudential category Pashukanis aimed to grasp the dependence of the law on the economy, and at the same time, to enquire into the degree to which the law preserves its autonomy from economic relations. In other words, the legal form as a concept conveys both the law's dependence on the economic sphere of exchange and its greatest inherent specificity: the way it translates economic relations into its proper language and set of legal/ideological constructs. The contributions to this volume provide a range of perspectives on how the concept of legal form has been developed and reinterpreted. Including the first English translation of Pashukanis's essay, 'Hegel, State and Law', this collection will be of considerable interest to scholars and students of legal and political theory. (shrink)

Modern jurisprudence has typically been presented as a debate between legal positivism and natural law. Though the demise of legal positivism has been touted despite its pre-eminence in past decades, it is clear that there remains a vigorous debate surrounding this theory. It is noteworthy that Hans J. Morgenthau’s legal thought and critique of legal positivism have remained unexplored in the context of this debate. Largely forgotten, his legal thought answers questions that lie at (...) the heart of the natural law and legal positivist debate. It showcases his deeply nuanced understanding of legal and political theory and contains a powerful and insightful commentary on the fundamental problems faced by international law. Building on existing literature, this paper unearths Morgenthau’s critique of legal positivism. It does this by re-examining his works, which address the question of whether moral considerations are relevant to determining the content of the law in force. It brings his legal thought to light, which highlights the artificiality of the division between law and morality and offers a nuanced analysis of problems inherent in international law. Ultimately, the paper challenges the claim that the law can be determined without resorting to moral judgement and shows how Morgenthau’s insights remain relevant to legal positivism and natural law debates today. (shrink)

The paper investigates phenomenology’s possibilities to describe, reflect and critically analyse political and legal orders. It presents a “toolbox” of methodological reflections, tools and topics, by relating to the classics of the tradition and to the emerging movement of “critical phenomenology,” as well as by touching upon current issues such as experiences of rightlessness, experiences in the digital lifeworld, and experiences of the public sphere. It is argued that phenomenology provides us with a dynamic methodological framework that emphasizes correlational, (...) co-constitutional, and interrelational structures, and thus pays attention to modes of givenness, the making and unmaking of “world,” and, thereby, the inter/subjective, affective, and bodily constitution of meaning. In the case of political and legal orders, questions of power, exclusion, and normativity are central issues. By looking at “best practice” models such as Hannah Arendt’s analyses, the paper points out an analytical tool and flexible framework of “spaces of meaning” that phenomenologists can use and modify as they go along. In the current debates on political and legal issues, the author sees the main task of phenomenology to reclaim experience as world-building and world-opening, also in a normative sense, and to demonstrate how structures and orders are lived while they condition and form spaces of meaning. If we want to understand, criticize, act, or change something, this subjective and intersubjective perspective will remain indispensable. (shrink)

The Democratic Republic of Congo has vast natural resources, many of which are regularly exploited by the electronics industry. Unfortunately, in addition to these resources, there are widespread human rights abuses committed by armed groups entrenched in the eastern part of the Democratic Republic of Congo. These armed groups are using profits from these minerals as a source of funding. Their human rights abuses have led to a growing humanitarian interest in the region and prompted the international community to action. (...) This paper explores the conflicts in the Democratic Republic of Congo, provides an understanding of the link between human rights abuses and conflict minerals, and interprets and critiques the legal actions of the international community. (shrink)

Kant's Critique of Pure Reason, his main work of theoretical philosophy, frequently uses metaphors from law. In this first book-length study in English of Kant's legal metaphors and their role in the first Critique, Sofie Møller shows that they are central to Kant's account of reason. Through an analysis of the legal metaphors in their entirety, she demonstrates that Kant conceives of reason as having a structure mirroring that of a legal system in a natural (...) right framework. Her study shows that Kant's aim is to make cognisers become similar to authorized judges within such a system, by proving the legitimacy of the laws and the conditions under which valid judgments can be pronounced. These elements consolidate her conclusion that reason's systematicity is legal systematicity. (shrink)

La insistencia de Ibn Hazm en la interpretación literal del Corán y la Sunna ha llevado frecuentemente a los investigadores modernos a concluir que él es un pensador conservador o dogmático. En realidad, no es ninguna de las dos cosas. El zahirismo de Ibn Hazm enfatiza el alcance limitado de la ley religiosa islámica, e intenta reducir las pretensiones de los juristas musulmanes de hablar en nombre de la ley de Dios. Esta metodología le lleva a apoyar el racionalismo, el (...) individualismo y el anticlericalismo. Ibn Hazm argumenta con consistencia a favor de estos principios en sus trabajos sobre teoría legal islámica, entre los que se incluye el texto al-Nubdha al-kafiya fi usul ahkam al-din que traducimos aquí. Esta propuesta implica socavar todo el sistema del madhhab, lo que explica la reacción negativa que recibió del sistema religioso establecido. En lugar del madhhab, Ibn Hazm intenta hacer valer la responsabilidad individual de cada musulmán en la obediencia a la ley de Dios, tal y como se revela claramente en el texto sagrado del Islam. (shrink)

The analysis of legal communication has almost exclusively been the domain of discourse analysts focusing on the ways that the linguistic system is used to realise legal meanings. Multimodal discourse analysis, where visual forms in combination with traditional linguistic expressions co-occur, is now also an area of expanding interest. Taking a Systemic Functional Linguistics “social semiotic” perspective, this paper applies and critiques an analytical framework that has been used for examining intersemiotic complementarity in various types of page-based multimodal (...) texts by analysing a cartoon satirizing the demands that verdict deliberations can make on a citizen jury seated in a Crown Court. While the multimodal analysis reveals that a straightforward application of this analytical framework is useful in and of itself, it is argued that the framework needs to be extended to also account for further and more complex layers of represented meaning. The analysis is also situated in the wider legal social semiotic, and draws attention to international debates on the efficacy of the jury system itself. (shrink)

The book is a critical analysis of the work of Max Weber, Emile Durkheim and Karl Marx. It focuses on their separate analyses of the role of law in society, pointing out their faults and errors, and the resultant impact on modern social science. The author takes issue with Weber's work on rationality, with Durkheim's work on repressive and restitutive law, and with Marx's work on social justice and law as part of the super-structure. In each section of the book (...) he shows the implications that flow from a re-assessment and re-interpretation of their work for an understanding of society. The book is multi-disciplinary, making ample reference to law, sociology, anthropology, history, religion, ecology, criminology, philosophy and economics. Its various chapters discuss a wide range of themes, including rationality, tradition, science, political authority, conflict resolution, community, justice and altruism. (shrink)

Cuando nos ocupamos de temas como la propiedad, la teoría del castigo, la definición de ciudadanía y la teoría del Estado, suele pasar desapercibido el lecho que subyace al novedoso proyecto de filosofía crítica de Kant. Mi objetivo en este trabajo es sacar a la luz ese marco, a través de una somera enumeración de los tópicos centrales de la Crítica de la razón pura, desde el punto de vista de la enorme influencia que esta obra tuvo en la filosofía (...) práctica de Kant y, por ende, en su filosofía jurídica y política. (shrink)

This chapter contains sections titled: Critical Legal Studies as Analytic Jurisprudence: The Critique of Liberal Rights Theory Critical Legal Studies as Social Theory Conclusion References.

In this paper, I argue for the existence of pathologies of juridicism. I attempt to show that the Western regime of right tends to colonize our intersubjective relations, resulting in the formation of affective and habitual dispositions that actually hinder participation in social life. Speaking of pathologies of juridicism is to claim that the legal form fundamentally contaminates the way in which we relate to ourselves, to others, and to the world, resulting in an ethically deformed, distorted or deficient (...) form of subjectivity. To support my thesis I consult a philosopher, whose work still provides a powerful analysis and critique of juridicism, namely, Hegel. Hegel provides an historic and a systematic theory of the pathologies of juridicism. His historical theory locates the origin of the abstract subjectivity of right in Roman antiquity. His systematic theory understands the negative effects of an absolutization of the legal domain as a persistent threat to social integration and an individual’s pursuit of the good life. I clarify these argumentative dimensions in two steps, beginning with Hegel’s historical analysis of right in his Lectures on the Philosophy of History. I then reconstruct Hegel’s critique of the subjectivity of right in the short chapter on the ‘Condition of Right’ in his Phenomenology of Spirit. In conclusion, I argue that, although Hegel’s diagnosis is correct, his prescribed therapy must fail: instead of radically altering abstract right in terms of content and form, it only recommends its complementation through other ethical spheres. (shrink)

This article examines the way in which the sublime comes to matter within various eighteenth century legal discourses, particularly in the work of Thomas Hobbes, John Locke and Edmund Burke. The essay seeks also to relate the theoretical works of these philosophers and lawyers to practical legislative developments of the period, in particular, the passage of the Black Act in1726 and the Marriage Act in 1753. The sublime comes to matter to the law in this period in the sense (...) that philosophical conceptualizations of the sublime in terms of power and transcendence become increasingly significant to representations of the nature and function of English law. Such theoretical accounts of the law as are found in the work of Hobbes, Locke, and Burke, moreover, translate into juridical practices designed to affirm the status of the law as a transcendentally sublime source of political authority in the eighteenth century. This article subjects that understanding of the law to a feminist critique that draws upon the work of the French philosopher, Luce Irigaray. It will be shown that the sublime within Western thought is generally associated with a sense of dread as to the possibility of the annihilation of consciousness. This ontological dread entails, in Jean Francois Lyotard’s terms, a recognition of the possibility of “nothing further happening” to the subject. Within Western discourse, this dread is projected onto, or made material in the form of, some ‘other’ that is, in Irigaray’s estimation, most usually feminine. Thus, the sublime comes to matter in this second, ontological sense and it is within this context that the transcendental sublime emerges as a response to a sense of dread that is projected on to some material, feminine, or feminised, ‘other’. In eighteenth century legal discourse, this ‘other’ take the form of the ‘state of nature’, or the revolutionary mob, or the revolutionary female who signifies more than anything a return to animality and chaos –an ontological and political fall from grace. The Black Act and the Marriage Act, with their shared emphasis upon the preservation of political stability and patriarchal property rights, may in this context be regarded as manifestations in the legal domain of the metaphysical principles of the transcendental sublime – with its emphasis upon an escape from, and a control of, the dreadful, feminine ‘other’. (shrink)

The paper discusses legal implications of the expansion of practical uses of mathematics in social life. Taking as a starting point the omnipresence of mathematical infrastructures underlying policies, technology and markets, the paper proceeds by attending to relevant materials offered by general philosophy, legal philosophy, and the history and philosophy of mathematics. The paper suggests that the modern transformation of mathematics and its practical applications have spurred the emergence of multiple useful technologies and forms of social interaction but (...) have impoverished access to meanings originating in the lifeworld. The paper also argues that, as part of devices of interest aggregation and expert networks, mathematical infrastructures can be scrutinized by a revised form of legal practice that subjects them to legal critique and reconstruction in order to overcome conditions that have eroded the moral self-awareness of individuals and communities and their existential meanings. (shrink)

Riggs v. Palmerhas become famous since Dworkin used it to show that legal positivism is defective. The debate over the merits of Dworkin's claims is still very lively. Yet not enough attention has been paid to the fact that the content of the statute at issue inRiggswas given by thecounterfactual intentionof the legislature. According to arguments from legislative intent, a judicial decision is justified if it is based on the lawmaker's intention. But can legislative intentions be determined counterfactually? More (...) generally, what are the discursive commitments undertaken by a lawyer or a judge, in an exchange of legal reasons, when using this interpretive methodology? This paper addresses these issues considering, in particular, David Lewis's “resemblance” condition and “relevant similarity” between possible worlds in the evaluation of counterfactual statements. The analysis sheds some new light on the debate on theoretical disagreements and shows that Dworkin's conception of law as an argumentative practice is not necessarily at odds with legal positivism. It rather allows us to look at it under a better light. (shrink)

This essay will critically analyse how conquest that resulted in white settler colonialism laid the foundation for epistemic violence. Epistemic violence, which took the form of the imposition of the law of the European conqueror in the wake of land dispossession in 1652 in South Africa is the fundamental problem this essay will critically engage with. We will rely on the Azanian philosophical tradition as a theoretical framework to critique this legal epistemic violence. Our theoretical framework is in (...) line with Afrikan jurisprudence, which is grounded in the culture and worldview of the Indigenous people conquered in wars of conquest. Fundamental to our argument is that the law of the European conqueror, which was imposed through conquest is a Eurocentric enterprise, which seeks to negate the Afrikan worldview and culture and reinforce historic injustice. It is important to note that epistemic violence commenced with the issuing of papal bulls, which undergirded conquest and white settler colonialism in South Africa. The thesis of the essay is that in the wake of conquest and the attendant imposition of the law of the European conqueror, white settlers used their law to technicalise issues of historic injustice such as land dispossession. It is in this sense that this essay seeks to contribute to the decolonisation of law by foregrounding the worldview and culture of the Indigenous conquered people. (shrink)