The Legal Relation

Legal Theory after Legal Positivism

Author: Alexander Somek

Publisher: Cambridge University Press

ISBN: 1107198011

Category: Law

Page: 208

View: 6762

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What is law? The usual answer is that the law is a system of norms. But this answer gives us at best half of the story. The law is a way of relating to one another. We do not do this as lovers or friends and not as people who are interested in obtaining guidance from moral insight. In a legal context, we are cast as "character masks" (Marx), for example, as "buyer" and "seller" or "landlord" and "tenant". We expect to have our claims respected simply because the law has given us rights. We do not want to give any other reason for our behavior than the fact that we have a legal right. Backing rights up with coercive threats indicates that we are willing to accept legal obligations unwillingly. This book offers a conceptual reconstruction of the legal relation on the basis of a critique of legal positivism.
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Legal Positivism in a Global and Transnational Age

Author: Luca Siliquini-Cinelli

Publisher: Springer Nature

ISBN: 3030247058

Category: Law

Page: 312

View: 7898

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A theme of growing importance in both the law and philosophy and socio-legal literature is how regulatory dynamics can be identified (that is, conceptualised and operationalised) and normative expectations met in an age when transnational actors operate on a global plane and in increasingly fragmented and transformative contexts. A reconsideration of established theories and axiomatic findings on regulatory phenomena is an essential part of this discourse. There is indeed an urgent need for discontinuity regarding what we (think we) know about, among other things, law, legality, sovereignty and political legitimacy, power relations, institutional design and development, and pluralist dynamics of ordering under processes of globalisation and transnationalism. Making an important contribution to the scholarly debate on the subject, this volume features original and much-needed essays of theoretical and applied legal philosophy as well as socio-legal accounts that reflect on whether legal positivism has anything to offer to this intellectual enterprise. This is done by discussing whether global and transnational cultural, socio-political, economic, and juridical challenges as well as processes of diversification, fragmentation, and transformation (significantly, de-formalisation) reinforce or weaken legal positivists’ assumptions, claims, and methods. The themes covered include, but are not limited to, absolute and limited state sovereignty; the ‘new international legal positivism’; Hartian legal positivism and the ‘normative positivist’ account; the relationship between modern secularisation, social conventionalism, and meta-ontological issues of temporality in postnational jurisprudence; the social positivisation of human rights; the formation and content of jus cogens norms; feminist critique; the global and transnational migration of principles of justice and morality; the Vienna Convention on the Law of Treaties rule of interpretation; and the responsibility of transnational corporations.
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A New Introduction to Comparative Law

Author: Jaakko Husa

Publisher: Bloomsbury Publishing

ISBN: 1849469512

Category: Law

Page: 272

View: 5888

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This thought-provoking introduction to the study of comparative law provides in-depth analyses of all major comparative methodologies and theories and serves as a common sense guide to the study of foreign legal systems. It is written in a lively and accessible style and will prove indispensable reading to students of the subject. It also contains much that will be of interest to comparative law scholars, offering novel insights into commonplace methodological and theoretical questions and making a significant contribution to the field.
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A Treatise of Legal Philosophy and General Jurisprudence

Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World, Tome 1: Language Areas, Tome 2: Main Orientations and Topics

Author: Enrico Pattaro,Corrado Roversi

Publisher: Springer Science & Business Media

ISBN: 9400714793

Category: Philosophy

Page: 1912

View: 1081

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A Treatise of Legal Philosophy and General Jurisprudence is the first-ever multivolume treatment of the issues in legal philosophy and general jurisprudence, from both a theoretical and a historical perspective. The work is aimed at jurists as well as legal and practical philosophers. Edited by the renowned theorist Enrico Pattaro and his team, this book is a classical reference work that would be of great interest to legal and practical philosophers as well as to jurists and legal scholar at all levels. The work is divided in two parts. The theoretical part (published in 2005), consisting of five volumes, covers the main topics of the contemporary debate; the historical part, consisting of six volumes (Volumes 6-8 published in 2007; Volumes 9 and 10, published in 2009; Volume 11 published in 2011 and Volume 12 forthcoming in 2016), accounts for the development of legal thought from ancient Greek times through the twentieth century. Volume 12 Legal Philosophy in the Twentieth Century: The Civil Law World Volume 12 of A Treatise of Legal Philosophy and General Jurisprudence, titled Legal Philosophy in the Twentieth Century: The Civil-Law World, functions as a complement to Gerald Postema’s volume 11 (titled Legal Philosophy in the Twentieth Century: The Common Law World), and it offers the first comprehensive account of the complex development that legal philosophy has undergone in continental Europe and Latin America since 1900. In this volume, leading international scholars from the different language areas making up the civil-law world give an account of the way legal philosophy has evolved in these areas in the 20th century, the outcome being an overall mosaic of civil-law legal philosophy in this arc of time. Further, specialists in the field describe the development that legal philosophy has undergone in the 20th century by focusing on three of its main subjects—namely, legal positivism, natural-law theory, and the theory of legal reasoning—and discussing the different conceptions that have been put forward under these labels. The layout of the volume is meant to frame historical analysis with a view to the contemporary theoretical debate, thus completing the Treatise in keeping with its overall methodological aim, namely, that of combining history and theory as a necessary means by which to provide a comprehensive account of jurisprudential thinking.
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Deontic Logic and Legal Systems

Author: Pablo E. Navarro,Jorge L. Rodríguez

Publisher: Cambridge University Press

ISBN: 0521767393

Category: Law

Page: 288

View: 3411

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"Logic and law have a long history in common, but the influence has been mostly one-sided, except perhaps in the 5th and 6th centuries B.C., where disputes at the market place or in tribunals in Greece seem to have stimulated a lot of reflection among sophistic philosophers on such topics as language and truth. Most of the time it was logic that influenced legal thinking, but in the last 50 years logicians began to be interested in normative concepts and hence in law"--
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Research Handbook on the Theory and History of International Law

Author: Alexander Orakhelashvili

Publisher: Edward Elgar Publishing

ISBN: 0857933086

Category: Law

Page: 560

View: 2951

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This pioneering Research Handbook with contributions from renowned experts, provides a comprehensive scholarly framework for analyzing the theory and history of international law. Given the multiplication of theoretical approaches over the last three decades, and attendant fragmentation of scholarly efforts, this edited collection presents a useful doctrinal platform that will help academics and students to see the theory and history of international law in its entirety, and to understand how interdependent various aspects of the theory and history of international law really are. Being the first comprehensive analysis of theory and history of international law, this unique book will be of great benefit to academics and students of international politics, ethics and philosophy.
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Understanding Jurisprudence

An Introduction to Legal Theory

Author: Raymond Wacks

Publisher: Oxford University Press, USA

ISBN: 0198723865

Category: Law

Page: 379

View: 380

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With its clear and entertaining writing style, Understanding Jurisprudence is the perfect guide for students new to legal theory and looking for an accessible introduction to the subject. Key theories and theorists are introduced in a compact and easy-to-read format, offering an engaging account of the central ideas without oversimplification. Key quotes from leading scholars are included throughout the text, introducing you to their work and its impact on legal philosophy, while further reading suggestions help you to navigate the broad range of literature available in this area. Each chapter concludes with a series of critical questions designed to encourage you to think analytically about the law and the key ideas and debates which surround it. New to this editionRevised to include the most recent scholarship in several areas of jurisprudence, and to reflect the social and political developments that have influenced the law and legal theoryExpanded chapters on natural law, legal positivism, realism, rights, and theories of justiceNew and enhanced discussions of the rule of law, global justice, virtue ethics, human and animal rights, the economic analysis of law, and postmodernist theoriesUpdated suggested further reading lists and questions at the end of each chapter
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Judicial Power, Democracy, and Legal Positivism

Author: Tom Campbell,Jeffrey Denys Goldsworthy

Publisher: Ashgate Pub Limited

ISBN: 9780754620617

Category: Law

Page: 435

View: 5534

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This collection of essays by a group of leading legal philosophers from the US, the USA and Australasia centres of the juridification of politics through enhancing the entrenched power of judges. The issues are examined in the context of a critique of the revival of legal positivism as a prescriptive political philosophy closely tied to the tradition of parliamentary democracy. The papers originated in an extended workshop held at the Australian National University in 1998 on 'Judicial Activism and Judicial Review in Australian Democracy'. Some of the essays focus on the recent Australian developments with respect to implied constitutional rights and others concentrate on Tom Campbell's legal theory of 'ethical positivism'. The book as a whole presents powerful and conflicting arguments bearing on the global debate about the changing role of judges.
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