Jurisdiction, Legal Form, and the Transition to Capitalism Debate: Recovering Agency and Discontinuity

How Free Became Open and Everything Else under the Sun

This article critically examines the methodology of defining the essence of law, revealing a fundamental flaw in many legal theories that equate the general concept of law with its specific form — juridical law. Legal scholars typically view law as a civilizational phenomenon, largely disregarding its historical development and the existence of other forms of law, such as primitive customary law (preceding juridical law) and humanistic law (which follows it). Only dialectical legal theory, developed in recent decades, has proposed this broader perspective, challenging the traditional focus on juridical law as the sole manifestation of legal reality. A significant limitation of mainstream legal theories is their failure to address the species-level essence of law, often reducing it to class-based and state-sanctioned norms. While some theorists, such as S. S. Alekseev, recognize the idea of “humanistic law,” they frame it as an advanced stage of juridical law rather than a distinct form of law. Conversely, early societies are either considered devoid of legal structures or are assumed to operate under an ambiguous notion of “natural law,” which does not align with their actual social practices. The article highlights a fundamental issue in legal categorization: legal scholars frequently classify law using arbitrary criteria without adhering to logical principles of taxonomic division. As a result, numerous subcategories of law—such as objective and subjective law, private and public law, national and international law—are defined inconsistently, lacking a systematic approach to distinguishing general and specific legal concepts. This methodological oversight obscures the deeper essence of law and prevents a coherent understanding of its true nature. Even scholars closest to the dialectical approach, such as L. S. Yavich, failed to establish a clear methodology for determining the essence of law. Yavich attempted to explain law through its class-based nature and economic determination, arguing that juridical norms represent the institutionalized will of the ruling class. However, his analysis remains incomplete, as it does not clarify how this “deep essence” of law emerges or how it fundamentally structures legal relations. Yavich identifies juridical law’s normative properties, arguing that objective and subjective law are interdependent and function as a unified whole within legal systems. Nevertheless, he does not resolve key contradictions inherent in his framework, particularly regarding the relationship between legal norms and individual legal rights. The article argues that a truly scientific understanding of law requires a dialectical approach that situates law within a broader historical and logical framework. Instead of viewing juridical law as the universal form of law, legal scholars must recognize the plurality of legal forms and analyze their evolution from primitive customary norms to class-based legal structures and beyond. Furthermore, legal norms should not be limited to legislative prescriptions, as many traditional theories assume. Rather, they must be understood as actual behavioral norms that materialize in real legal relationships, thereby moving beyond the abstract “objective-subjective” dichotomy. A comparison is also made with A. F. Zakomlistov’s “normological approach,” which claims to offer a universal legal theory free from class-based constraints. However, Zakomlistov reduces the essence of law to its juridical form, defining it through anthropological and ethical abstractions rather than historical material conditions. His view of law as an “anthropological norm” that defines human existence detaches law from its concrete social and economic basis, ultimately leading to an abstract and non-historical legal conception. Legal understanding will remain trapped within the confines of juridical essence unless scholars adopt a dialectical methodology that fully accounts for law’s historical transformations. While juridical law remains the dominant legal form in class-based societies, it does not exhaust the full spectrum of legal reality. A comprehensive legal theory must integrate insights from dialectical logic and materialist history to accurately define the nature of law as a social phenomenon. Without such a methodology, legal scholars risk conflating law with state-sanctioned norms, thereby obscuring its deeper ontological and historical foundations. Key words: essence of law, juridical essence, dialectical legal theory, legal normativity, class-based law, types of law, primitive law, humanistic law.

This article reconstructs Austro-Marxist Otto Bauer’s theoretical reflections on the democratic republic. It demonstrates how Bauer proceeds from the irreducible conflict around the exercise of rule as his point of departure, but also pays due attention to the impact existing legal and political forms have on scopes of articulation for antagonistic conflict. He elaborates a cycle of three stages through which the democratic republic passes: proletarian democracy, the people’s republic, and an innovative conceptualization of the dictatorship of the proletariat as a backdrop for the stabilization and defence of democratic institutions. Bauer’s reflections refine central concepts of political Marxism* and relate them to democratic theory. Drawing loosely on Polybius’ cycle of constitutions, Bauer can be viewed as a ‘Red Polybius’. He soberly analyses the different stages of the republic and reveals how they are connected to one another. Ultimately, this article demonstrates that Bauer’s work provides ample resources for theorizing the mutual interrelations and interrelatedness of social conflict and political form.* ‘Political Marxism’ in this sense does not refer to the theoretical current within the Anglophone world, but rather to a Marxism that is political, i.e. that views the production of theory as a means to an end, namely the political transformation of society as a whole.

Recent scholarship on transnational law has emphasised how the proliferation and fragmentation of normative orders, legal forms, and transnational actors are transforming the nature and authority of law in the contemporary global context. This Introduction presents what we term translocal legalities—emergent forms of normativity that are constituted through grounded encounters with local and transnational legal practices, discourses, subjectivities, and forms of resistance. By coining this new term, we seek to shift the gaze of transnational legal scholarship away from a top-down mapping of the structures of global law, to pay more attention to the situated forms of legality that are produced as legal norms from different scales and contexts circulate, interact, and encounter one another. Centring our analysis on the phenomenology of the encounter, we develop an analytical and empirical approach to understanding these encounters by focusing on how law is constituted not solely within traditional legal organisations and institutions, but through the everyday practices, discourses, and subjectivities of those mediating local, national and transnational norms.

What would the father of the Constitution think of contemporary developments in American politics and public policy? Constitutional scholars have long debated whether the American political system, which was so influenced by the thinking of James Madison, has in fact grown outmoded. But if Madison himself could peer at the present, what would he think of the state of key political institutions that he helped originate and the government policies that they produce? In What Would Madison Do?, ten prominent scholars explore the contemporary performance of Madison's constitutional legacy and how much would have surprised him. Contents: 1. Introduction: Perspectives on Madison's Legacy for Contemporary American Politics, Pietro S. Nivola and Benjamin Wittes 2. Mr. Madison's Communion Suit: Implementation-Group Liberalism and the Case for Constitutional Reform, John J. DiIulio Jr. 3. Constitutional Surprises: What James Madison Got Wrong, William A. Galston 4. Overcoming the Great Recession: How Madison's "Horse and Buggy" Managed, Pietro S. Nivola 5. Gridlock and the Madisonian Constitution, R. Shep Melnick

What would the father of the Constitution think of contemporary developments in American politics and public policy? Constitutional scholars have long debated whether the American political system, which was so influenced by the thinking of James Madison, has in fact grown outmoded. But if Madison himself could peer at the present, what would he think of the state of key political institutions that he helped originate and the government policies that they produce? InWhat Would Madison Do?, ten prominent scholars explore the contemporary performance of Madison's constitutional legacy and how much would have surprised him. Contents: 1. Introduction: Perspectives on Madison's Legacy for Contemporary American Politics, Pietro S. Nivola and Benjamin Wittes 2. Mr. Madison's Communion Suit: Implementation-Group Liberalism and the Case for Constitutional Reform, John J. DiIulio Jr. 3. Constitutional Surprises: What James Madison Got Wrong, William A. Galston 4. Overcoming the Great Recession: How Madison's ""Horse and Buggy"" Managed, Pietro S. Nivola 5. Gridlock and the Madisonian Constitution, R. Shep Melnick

It is a common perception that copyright has been struck by a serious crisis of legitimacy. This crisis can be traced to a variety of causes, but the main one would seem to lie in the (over)protectionist drift by which copyright legislation has been affected, and which has led to a radical shift in the balance of interests that has been achieved over time. However, the balancing of interests is not an activity exclusively entrusted to lawmakers, for it also involves judges and legal scholars. This essay explores the ability of the three “legal formants” to ensure that the EU copyright regulatory framework stays fit for purpose in the digital environment by referring to the widely debated question whether the digital marketplace is an appropriate context into which to expand the principle of exhaustion of the distribution right. In the first place, a few considerations on the interests protected by the principle of exhaustion are proposed, arguing that there is no reason why this principle should become any less necessary in the online distribution. In the second place, it is considered the way lawmakers and judges have addressed the question of whether and under what conditions a principle of online exhaustion can be recognized. In the third place, it is discussed how some solutions based on a nonformalistic and nontextualist interpretation of the norms can make it possible to overcome the objections that have so far prevented the principle of online exhaustion from being recognized for digital works other than computer programs.

The Spiritual Dimension of Social Justice

The philosophy of law constitutes a fundamental branch of legal science that provides a conceptual framework for understanding the essence, purpose, and legitimacy of law. This study is grounded in the need for a philosophical perspective that views law not merely as a collection of written norms, but as a reflective human construct closely connected to justice, morality, and social values. Using a normative-juridical method, this research is based on a systematic literature review of classical and contemporary legal philosophies, focusing on the relationship between law, morality, and justice. The analysis demonstrates that legal understanding is shaped by diverse philosophical approaches, ranging from legal positivism, which emphasizes the separation between law and morality, to natural law theories that prioritize universal moral principles as the foundation of legal validity. The findings indicate that the philosophy of law functions as an intellectual gateway that enables a critical and reflective understanding of law, allowing legal norms to be evaluated beyond formal legality. This study concludes that an introductory engagement with the philosophy of law is essential for developing analytical reasoning and ethical awareness in legal scholarship. Accordingly, the study recommends that the philosophy of law be positioned as a mandatory and contextually oriented subject within faculties of law in Indonesia, in order to strengthen students’ conceptual, normative, and moral understanding of law in both theory and practice.

Legal scholars have long emphasized the corrosive impact of conflict on long-term commercial and interpersonal relationships. To minimize the negative consequences of such conflict, members of close-knit groups who anticipate future interactions create ways to resolve their disputes using internal group norms rather than state-enforced legal rules. From farmers in California's Shasta County to jewelers in midtown Manhattan, the literature describes people who create informal norms of conflict management that are faster and less expensive than formal law and that lessen the harm that conflict causes to their relationships.This Article tells a different story. It describes a tightly organized group of commercial traders - tuna merchants in Tokyo - who are repeat players in a discrete marketplace where there are regular problems with the quality of auctioned goods. Rather than ignoring those problems or quietly resolving them with reference to informal market norms, Tokyo's tuna merchants make use of a highly specialized court created by the state - the Tuna Court - that follows formal rules and procedures that are contained in a government ordinance. The supposed disadvantages of legal rules are nowhere apparent. The Tuna Court is fast and inexpensive, and the process of articulating and resolving claims serves to strengthen individual relations and the cohesion of the market community. A comparison between Japan and the United States demonstrates that there is more disputing and more legal formality in the Japanese tuna market, and this Article credits a mix of economic and cultural factors for the difference. In short, by presenting a detailed case study of a highly specialized court that operates under government auspices, this Article argues that formal state law can outperform informal group norms by satisfying the business needs of close-knit merchants while simultaneously contributing to the shared values that underlie the success of their future transactions.

During his confirmation hearings, then-judge John Roberts analogized the role of a judge to the role of a baseball umpire. Roberts argued that umpires do not make the rules; they simply apply them. Legal scholars have criticized Roberts from a legal realist perspective because the analogy misconstrues the nature of judging as formalistic. I believe Roberts also misconstrued the nature of umpiring as formalistic. Like judges, umpires must rely on their experience, rather than logic, because the rules of baseball are sometimes incomplete, indeterminate, and contradictory. On occasion, umpires even ignore the rulebook (justifiably). The judges-as-umpires analogy thus illustrates the differences between legal formalism and legal realism in a way that students can more easily understand.

Objectivity has received a bad name. This presents a special problem to the field of law, and it is a problem that argument scholars are in a position to shed some light on. Setting aside the radical Critical Legal conclusion that the only consistent action is to do away with law altogether (for example, Gable, 1980), there is on the one hand the conclusion that, so long as a legal system exists, it is necessary that judges remain (Bennett, 1984). The reason is obvious. The point of law is to enforce justice. However, if judges are deciding on arbitrary bases, then justice cannot be served. But, on the other hand, there is the claim that objectivity cannot be obtained at all. What is to be done with the Critical Legal (and, before them, the Legal Realist) claims that black letter law does not constrain judges? The challenge is to a way to conceive of objectivity that recognizes both its necessity and its elusiveness. It is not enough to merely reassert outmoded assumptions about objectivity nor to viciously trash them without leaving adequate ground for social action. Instead, it might be more productive to try to understand how objectivity is constructed and what impact those constructions have on specified outcomes. A close reading of legal decisions is at least one useful vehicle to understand how judges are constructing their own definition of objectivity. KEY CONCEPTS Much of the present debate about objectivity may be confused by static definitions of the term which attempt to define it in a bifurcated fashion rather than in a way that explores its multi-form manifestations. Given this confusion, the search for objectivity ought to begin with a definition, and the process of definition should start by distinguishing three possible meanings. The first is the logical positivist definition, which assumes facts are objects existing outside and independent of scientific observers (Krippendorff, 1989, p. 69), that the facts will yield a single, universal truth (Krippendorff, 1989), and that we only find rather than create the conclusions. The counterpart in law is legal formalism wherein the law is a thinglike object, and judges find the correct decision and apply it to the facts of the case to produce a single, correct decision. Giddens (1989) concludes that these assumptions are dead; untenable for a host of reasons so vast as to defy a simple summary. Legal scholars and this author as well agree with Giddens' assertions. As early as 1921, Cardozo (1921/1964) declared the mechanical view of law a dead issue, a useless straw-person argument that had no function other than as a foil for the Realists. Schubert (1964) found no signs of life for the mechanical view four decades later, and Murphy and Tanenhaus (1972) reported that it was every bit as extinct as the dinosaurs in Michael Crichton's Jurassic Park. A second possible definition is offered by Bennett (1984), who argues that judges are so long as they rely on the use of sources for decision external to the decider's own (or subjective) standards or values, without necessarily insisting that those external sources be authoritative. Such a definition is at least more progressive but remains short of the mark because (a) it does not specify at all which standards are to be relied on, leaving the process objective but highly arbitrary, and (b) the distinction between those beliefs which are the judge's own and those which are external is blurry at best. Some impressive empirical research shows that judges are likely to rely on external standards which closely mirror their own (Nagel, 1963). A third possible definition of objectivity is a consensual one. In this view, a concept becomes more when a consensus of informed opinions adhere to the idea. Sandmann (1991) has usefully described the idea as the application of field theory to law; Sandmann also correctly points out that such conceptions, although they have much to offer, do not really address the problems of objectivity but merely expand the circle of subjective arguments. …

In consequence of the three ECJ cases in Centros (1999), Uberseering (2002), and Inspire Art (2003), EU member states can no longer effectively apply the real seat theory to companies from other Member States or take other measures to avoid the circumvention of their own laws by foreign incorporation. Founders of companies can – in principle – “pick and choose” the best legal form from all Member States, a result that many policymakers and legal scholars had sought to avoid for decades. This chapter attempts to tell a short intellectual history of the debate. In the early years of the EEC, it was thought that company law would be harmonized to such a strong degree that the free movement of corporations would no longer raise any concern. When the harmonization program stalled, Member States felt justified in maintaining protectionist measures impeding free choice of corporate law. Many saw dicta in the Daily Mail case of 1988 as providing a justification for the real seat theory, whereas few observers paid attention to the Segers case of 1986, which seemed to be saying the opposite. The triad of Centros, Uberseering and Inspire Art thus was a particularly disruptive surprise. The ECJ, was seen as opening the door to regulatory competition in European corporate law, and in particular to English Private Limited Companies flooding the continent. In the end, there was little “offensive” regulatory competition, since no Member State had the incentive to capture a large part of the market for incorporation. Member States did, however, engage in “defensive” regulatory competition by eliminating requirements in their laws that seemed to drive founders to the UK (even if it does not appear to be the reason why the popularity of the English Private Limited Company on the Continent ended after a few years). In consequence, the ECJ thus unwittingly nudged Member States toward a certain vision of corporate law that had never been intended by policymakers.

Obligations have since millennia their legal form in the concept of contract; legal scholars have since reflected upon the issue in all social, political, and cultural circumstances and philosophers treated contract as a particular form of inter-subjectivity. The text of this chapter has it all: focusing on Ch. S. Peirce’s remarks on contract, one is confronted with in-depth philosophical considerations, whereas the dimensions of translation not only cover linguistic issues but more in general the various levels of meaning in legal discourse and in everyday language as well as their proper translatability. A contract, the chapter concludes, must be understood as a relational speech-act. A promise, in its simplest form, is an act in which a speaker manifests his or her intention, based upon his or her volition, to perform some act in the future. That would make a contract a dual promise from speaker to hearer and vice versa. But a contract is more than two promises amalgamated. Contractual acts are themselves acts in which as future exchange is foreshadowed by a present, symbolic exchange. This third element is the clue for a correct interpretation. It consists in the joint declaration’s special purpose: the legal consequences that enhance what would otherwise be a trivial and inconsequential transaction.

In consequence of the three ECJ cases in Centros (1999), Uberseering (2002), and Inspire Art (2003), EU member states can no longer effectively apply the real seat theory to companies from other Member States or take other measures to avoid the circumvention of their own laws by foreign incorporation. Founders of companies can – in principle – “pick and choose” the best legal form from all Member States, a result that many policymakers and legal scholars had sought to avoid for decades. This chapter attempts to tell a short intellectual history of the debate. In the early years of the EEC, it was thought that company law would be harmonized to such a strong degree that the free movement of corporations would no longer raise any concern. When the harmonization program stalled, Member States felt justified in maintaining protectionist measures impeding free choice of corporate law. Many saw dicta in the Daily Mail case of 1988 as providing a justification for the real seat theory, whereas few observers paid attention to the Segers case of 1986, which seemed to be saying the opposite. The triad of Centros, Uberseering and Inspire Art thus was a particularly disruptive surprise. The ECJ, was seen as opening the door to regulatory competition in European corporate law, and in particular to English Private Limited Companies flooding the continent. In the end, there was little “offensive” regulatory competition, since no Member State had the incentive to capture a large part of the market for incorporation. Member States did, however, engage in “defensive” regulatory competition by eliminating requirements in their laws that seemed to drive founders to the UK (even if it does not appear to be the reason why the popularity of the English Private Limited Company on the Continent ended after a few years). In consequence, the ECJ thus unwittingly nudged Member States toward a certain vision of corporate law that had never been intended by policymakers.