Contemporary Legal Theory Research Articles

The Concept of Law and Its Conceptions

. In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking.

The Space of Law and the Law of Space

This essay investigates the interconnections between early Greek cosmology and legal theory. In particular, it demonstrate that spatial and legal concepts developed hand in hand, and that it would be mistaken to assume that legal terminology in cosmology, and/or spatial terminology in legal texts, are best read metaphorically. This state of affairs may be contrasted with contemporary legal theory, which often employs spatial terms metaphorically. The principal authors I␣consider are Solon, Anaxamander, Heraclitus and Parmenides. The essay concludes that justice and space/place were, for the Early Greeks, often equated—that distinct differing meanings for the two were not yet clearly established, and so, in a sense, there was both a spatial component to law, and a legal component to space.

Thomas Aquinas and the Metaphysics of Law

Despite modernity's longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts - Thomas Aquinas' still-widely-read Treatise on Law - with a view toward tracing the influence of Thomas' metaphysical presuppositions. This article shows that Thomas' account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas' hierarchical view of reality exposes tensions between Thomas' top-down account of law and his sophisticated bottom-up observations. For example, Thomas grounds human law's authority in its foundation in the higher natural and eternal laws. On the other hand, he is well aware that many if not most legal questions involve determination of particulars - the resolution of questions that might reasonably be answered in more than one way. Thomas' metaphysics sometimes works against his inclination to give place to human freedom in the creation of law. Thomas' metaphysical approach also raises important questions for contemporary legal theory. His insistence on addressing the question of law's ontological status, for example, challenges the reductionism of much contemporary jurisprudence and provides a vocabulary for accounting for the wide variety of analytical approaches legal philosophers employ.

Law, Right, and Forgiveness

In Hegel's Phenomenology of Spirit, the identification of the singular individual with the universal is initially expressed by means of the concepts of law and right. Developed by Hegel in ethical life and state of right,' law and right enable a particular kind of being, self-knowledge, and interaction for their respective consciousnesses. These legal categories, however, virtually disappear in the remainder of the text, and whereas Hegel's critique of law in these sections is important in its own right, attempts to bring it to bear on contemporary legal theory risk anachronism. What I will argue in this essay, however, is that the problem of law re-enters the text in Hegel's discussion of forgiveness, and that we can look there for a modern resolution to the problematic dependence on law exhibited by the very different legal frameworks of ethical life and state of right. The ascendancy of forgiveness as a fundamental organizational principle results in a radical circumscription of the role of law. It also represents the enduring force of Antigone's political legacy, or so I will argue-both for Hegel and for us modern readers still grappling with her role in the Phenomenology. In addition to developing the import of these legal insights for interpretation of the Phenomenology, I will also suggest that forgiveness's resolution of the failed legal frameworks is helpful in the context of the contemporary skepticism (exhibited by feminist, race-theorist, queer, communitarian, and democratic perspectives, among others) regarding the purported critical efficacy and neutrality of legalism and the connection of legal advocacy with the "natural" aspects of human identity. Hegel's theory of forgiveness provides a strategy for exposing the inequalities in access to power that the liberal protection of freedom and equality has been accused of concealing. His view of its priority over law can be used to transform law into an expression of a relationship between universal and individual that is neither composed prior to the production of that relationship, nor constituted by an assertion of power by defenders of the status quo, who deny the impact of difference on the law's operation. I will argue that Hegel's theory of forgiveness is productive in this context because it construes individual action as central to the universels that regulate our interaction and provides a critical way of thinking and representing the social "we" holistically. In order to construct the ground upon which to show the relevance of Hegel's theory of forgiveness to his theory of law, I will discuss: a) the forms of social life in the Phenomenology that are organized according to law and right; b) forgiveness' resolution of the difficulties they confront; and c) the critical transformation of law that Hegel's account of forgiveness suggests. For the present I will limit myself to the internal logic of the Phenomenology and to the importance of forgiveness as a social-structural principle therein, and thus not address the more immediately practical resonance of forgiveness's as an alternative to contemporary legal thinking. The Law-Based Societies of the Phenomenology. Ethical life and state of right are the only social forms of consciousness in the Phenomenology that are based specifically on law and right, and both are for Hegel inadequate expressions of spirit. The characters of ethical life identify immediately with their respective laws (Creon with human and Antigone with divine law); the positive aspect of this identification is their implication and agency in the laws and forms of social interaction that structure their political life, in whose production they are thus immediately engaged. The immediacy of this identification, however, precludes any recognition and expression of their particularity. Ethical characters are submerged in the universal ethical substance, such that the role of their particularity in it is concealed until the "unsuppressable" assertion of the singular self renders ethical substance unsustainable. …

Killing Naked Soldiers: Distinguishing between Combatants and Noncombatants

Just war theorists contended that weapons are illegitimate unless they can be used in such a way so as to distinguish combatants from noncombatants. Contemporary international legal theory also draws heavily on the principle of discrimination. The Geneva Convention (IV), as interpreted in the Second Protocol of 1977, says: “The civilian population as such, as well as individual civilians, shall not be the object of attack…Indiscriminate attacks are prohibited.” In both the Just War tradition and contemporary international law, the main justification for such a principle has to do with noncombatant immunity, the idea that only those who are combatants can legitimately be attacked in war. The principle of discrimination also relies on the idea that it is possible to distinguish, in a morally significant way, those classes or groups of people who participate in wars from those who do not. The categories of “civilian” or “soldier,”“combatant” or “noncombatant,” are thought to be stable. Yet, the case of the naked soldier taking a bath challenges such stability in a way that illustrates the serious conceptual and normative problems with identifying such social groups. In this paper I argue that, because of these problems, the traditional principle of discrimination offers no clear, morally relevant, line between those who fight and those who do not. Nonetheless, I argue that a distinction of this sort should be maintained, although one that will restrict tactics in war far more than is normally recognized.

Applicability of Legal Norms

It is a basic intuition about the law that organs of adjudication ought to justify their decisions by recourse to the appropriate applicable norms. Nevertheless, a sound reconstruction of the applicability of legal norms has been largely ignored in contemporary legal theory. Different connections between applicable norms and cases are explored in this paper, and a distinction is suggested between internal and external applicability. A legal norm is internally applicable to the cases regulated by its scope of validity (i.e. by its terms the norm fits the facts of the case), and is externally applicable when it has to be used in a certain case as a justification of an institutional decision (i.e. the presiding judge has a legal duty to apply it to the case). A usual claim holds that all and only valid norms which, by their terms, apply to the case at hand must be applied in determining the outcome of the case. However, we try to demonstrate that a valid legal norm that exists as a member in a legal system may be internally applicable to a case and yet not be externally applicable to it. It also may occur that judges sometimes have the legal duty to apply norms that are not part of their own legal system. Consequently, the relations between internal and external applicability and between external applicability and validity deserve a careful examination. In these pages we hold that, though validity plus internal applicability is neither a necessary nor a sufficient condition of the duty to apply a legal norm, there is a complex conceptual link between external applicability and the systematic reconstruction of the law.

Can Pragmatism Overcome the Impasse in Contemporary Legal Theory?

In recent years, there has been a renewed interested in examining the nature of legal theory and finding ways to resolve impasses that may exist in contemporary legal theory. One suggestion made by some prominent philosophers of law (for example, Raz and Leiter) is the need to supplement arguments in legal theory with pragmatic considerations. By appealing to pragmatic considerations, it is thought that we can decide between competing conceptions of law. In this paper, I will examine how the appeal to pragmatism would work in the context of contemporary legal theory, and I will show why such an appeal to pragmatic considerations cannot solve the main problem that it was meant to solve.

From Oxymoron to Intersection: An Epidemiology of Legal Research

The foregoing articles about research in and around law reflect a broad conception of what it is to be a legal scholar. The views and experiences of the authors gathered here are probably no more radical or heterodox than those to be found in any of the earlier editions of this journal or the many others devoted to themes of law, society, culture and contemporary legal theory. Having brought these people together to reflect on what it is that they think and do when researching in law, we have raised 'the legal research question'.1 In these closing remarks we would like to reflect on the practical implications of the epistemologies which emerge from the views of these authors.

The culture of slander in early modern England

Slander constitutes a central social, legal and literary concern of early modern England. A category of discourse which transgresses the law, it offers a more historically grounded and fluid account of power relations between poets and the state than that offered by the commonly accepted model of official censorship. An investigation of slander reveals it to be an effective, unstable and reversible means of repudiating one's opposition that could be deployed by rulers or poets. Spenser, Jonson and Shakespeare each use the paradigm of slander to challenge official criticism of poetry, while contemporary legal theory associates slander with poetry. However, even as rulers themselves make use of slander in the form of propaganda to demonize those they perceive to be their foes, ultimately they are unable to contain completely the threat posed by slanderous accusations against the state.

Legal Theory and Social Theory

While social theory and legal theory were once closely intertwined, contemporary American sociology pays scant attention to recent developments in legal theory. But the problems that legal theory currently wrestles with are very similar to those with which sociology is now centrally concerned. This essay reviews major schools of thought in contemporary legal theory to introduce sociologists to some potentially useful literatures on the meaning of rationality; on critical theory; on the importance of gender, race, and class in understanding social institutions; on the interpretive turn; on the relationship between structure and agency; and on the revival of pragmatism.

Postmodern Jurisprudence: The Law of Text in the Texts of the Law

Book synopsis: 'Postmodern Jurisprudence' brings together poststructuralism and legal theory. Contemporary legal theory is committed both to the major truth telling Enlightenment claims of clarity, logic, impartiality and analytical rigour, and to the normative demands of liberal equality, fairness and justice. But through a close reading of the leading texts of contemporary legal philosophy (Dworkin, Finnis, Fish, Norris, Goodrich, Jackson and recent Marxist theories of law), Postmodern Jurisprudence demonstrates that modernist discourses of law contain the unsettling thematics of postmodernity which these texts attempt to deny. Furthermore, by using an array of textual and contextual techniques in the reading of conventional legal works, such as law reports, Postmodern Jurisprudence points towards overcoming the impasse in the interpretation debate. The book concludes with an analysis around a piece of 19th-century literature which is approached via the dynamics of postmodern copyright law.

From Criticism to Construction in Modern Critical Legal Theory

The American Critical Legal Studies Movement stands as the most influential critical movement in law since Legal Realism, already exerting a subtle yet pervasive influence on the direction of scholarship in the Anglo-American legal tradition. Yet alongside the emergence of Critical Legal Studies, there is a proliferation of European Critical Theory of law which has its origins in the writings of the contemporary German social theorists Jurgen Habermas and Niklas Luhmann.' The notable characteristic of these modem critical legal theories is their aim to move beyond criticism to the construction of novel conceptions of law which demonstrate the capacity of law both to effect and regulate significant social change. Unlike their predecessors, these modem theorists attempt to show that programmes of social change may be engineered by developing the potential for such change that lies within existing legal rules and doctrines, and not by other non-legal means. Accordingly, this paper does not endeavour to describe the critical element of contemporary critical legal theory but rather to evaluate its success in moving beyond criticism to the required conceptions of law. I shall attempt to show that this reconstructive aim may be accomplished only if two intricate hurdles are overcome. For want of less awkward terms, I call these hurdles 'legal nihilism' and 'circularity'. I shall further contend that the principal solution to these two obstacles is to establish that law has what I shall call 'transformative potential'. The problem of legal nihilism takes two forms.2 Firstly, it manifests itself in a loss of hope in the possibility of moving beyond criticism of law to the creation of a new conception of law. Secondly, it is represented by scepticism of the law's

Skepticism and the Apologetics of Law

Contemporary legal theory is increasingly marked by the clash between two opposing, basic approaches to law and legal doctrine. The first approach is skeptical: it seeks both to expose the conceptual and normative commitments of tort or contract or constitutional law, and to impeach them on the grounds that they comprise what are in fact incoherent and morally insupportable ideologies. By contrast, the second approach is explicitly apologetic: it aims to celebrate law by offering a reconstruction and justification of the basic features of constitutional or statutory or common law practice. The first approach is of course represented by the “deconstructionism” imported into law from literary and social theory by those scholars associated with the Critical Legal Studies (“CLS”) movement. At its most controversial, the work of these recent legal skeptics seeks to link traditional legal doctrine, and the modes of analysis and pedagogic methods peculiar to it, with a radical critique of political liberalism by showing that the doctrine and its methods serve to legitimate existing social inequalities, hierarchies, and forms of domination, while at the same time obscuring their own legitimating role. One important corollary of this general thesis is the emphasis upon what Roberto Unger has called “the contradictory and manipulable character of legal doctrine”, i.e., the effort, inspired by the familiar deconstructionist premise that texts lack any fixed or stable and coherently formulable meaning, to “deconstruct” the basic categories of (liberal) legal discourse with the aim of exposing tensions and inconsistencies inherent within them, and of depicting the responsiveness of this “patchwork quilt” to background social, political, and economic forces.

“TOO MANY LAWYERS, NOT ENOUGH PRACTICAL PEOPLE”: The Policy‐Making Discretion of the Federal Trade Commission

Contemporary legal theory recognizes three primary methods of controling administrative discretion: confining through substantive standards, structuring through procedural requirements, and checking through bureaucratic review. It is sometimes assumed that these techniques operate independently and that their effects are additive. This article reports on a study of Federal Trade Commission policy‐making and concludes that in some instances there can be complex interactions among the legal techniques for controlling discretion, and between the legal techniques and political or bureaucratic forces shaping policy‐making discretion.

Conceptualizing law: problems and prospects of contemporary legal theory

Conceptualizing law: problems and prospects of contemporary legal theory

Petrazycki's Significance for Contemporary Legal and Moral Theory

Petrazycki's Significance for Contemporary Legal and Moral Theory

On Some Nominalistic Tendencies in Contemporary Legal Theory

On Some Nominalistic Tendencies in Contemporary Legal Theory