Jurisprudence Theory Research Articles

The Role of Coercion in the Jurisprudence of Hart and Raz: A Critical Analysis

Legal positivism as a jurisprudential theory is often associated with the project of understanding 'law as it is' rather than 'law as it ought to be.' H.L.A. Hart, widely regarded as the most influential legal philosopher of the 20th century and the founder of contemporary legal positivism, characterized his project as 'descriptive sociology,' an attempt to provide theoretical insight into the workings of actual modern legal systems. Since most people, as well as most lawyers, would say that the law’s enforceability through sanctions, whether criminal or civil, is a key feature of law, it is surprising that Hart rejected the view that coercion is essential to the nature of law. It is equally surprising that Joseph Raz, the most influential positivist of the last quarter century, agrees with this rejection. Indeed, according to Hart, coercion is merely ancillary to the main functions of law in society, and according to Raz, coercion is not an essential feature of law because it plays no necessary conceptual role in elucidating and distinguishing law as an institutionalized normative system.In this article, I argue that Hart and Raz are both mistaken here - i.e., that coercion is essential to the nature to law. In particular, with respect to Hart, I argue that (1) in order to understand his account regarding the role of coercion in a theory of the nature of law, we must analyze his criticisms of John Austin’s and Hans Kelsen’s sanction-centered accounts of law; (2) Hart’s critique of Austin and Kelsen reveal a fundamental role for the concept of obligation; (3) Hart’s critique of Austin and Kelsen reveal a fundamental role for an explanation of the experiences of law-subjects; (4) Hart rejects sanction-centered accounts because they could not adequately account for legal obligation and obscured how law functions in society; (5) Hart’s theory of obligation, however, requires an explication of the legal sanction in order to differentiate legal obligation from other forms of obligation; and (6) Hart’s focus on the experience of law-subjects undermines his claim that the internal point of view is primary for understanding the nature of modern legal systems.With respect to Raz, I argue that: (1) in order to understand his account of the role of coercion in a theory of the nature of law, we must first understand his account of institutionalized normative systems; (2) his account of such systems apparently implies that coercion is unnecessary for the existence of a legal system; (3) this account, however, fails because it does not provide a basis for distinguishing a legal system from other institutionalized normative systems within the same society (specifically, religious systems and popular morality); and (4) his conceptual methodology implies a different conclusion than the one offered.

Social Science and the Courts

Social scientists collect vital information that bears on issues of education policy. When the courts are faced with an opportunity to make a decision that shapes education, judges need access to high-quality research, but they must also be convinced that it can be useful in their decision making. This article approaches the question of how social science can be made more effective in judicial decision making. The authors examine the use of social science evidence by the courts and the theories of jurisprudence that bear on its effectiveness. As an example of the difficulty of influencing the outcome of a case, they review the U.S. Supreme Court’s decision involving the use of race in school assignments in Parents Involved in Community Schools v. Seattle School District No. 1 (2007).

Rudolf Von Jhering’s Influence on Karl Llewellyn

Karl Llewellyn and Jerome Frank are today considered co-founders of the American Legal Realist School. Although American legal realism is no longer the predominant school of jurisprudence in the United States, it still plays an important role in the formation of our legal traditions. Given the breath of Karl Llewellyn’s contributions to law in America, it would be unfathomable for such a varied body of work to have had only one or just a few significant influences. Several of the influences on the life and work of Karl Llewellyn have been suggested and expounded upon, including Arthur Corbin, Jerome Frank and Roscoe Pound. While these are certainly important influences on the life and work of Llewellyn, one major influence on his thinking has rarely been considered. The role of Rudolf von Jhering deserves further exploration.The purpose of this Article is to shed light on the influence of Rudolf von Jhering on the life and scholarship of Karl Llewellyn. Following a brief overview of Llewellyn’s life, education, major work, and jurisprudential philosophy, information is provided on the life of Rudolf von Jhering. Consideration is given to the influence of German jurisprudence on American jurisprudential theory and thought, as well as the recognized influences from German jurisprudence on Llewellyn’s work, including Jhering’s influence on the life and work of Llewellyn, with particular emphasis on the Uniform Commercial Code.

Sexual Morality and the Constitution: People V. Onofre

The New York Court of Appeals decision in People v. Onofre, 51 N.Y.2d 476 (1980), addressed the issue of prohibitions on private consensual, sodomatic conduct, both hetro- and homosexual. The Court of Appeals made history because it was the first judicial victory for advocates of sexual freedom for homosexuals in a case where homosexual acts were directly at issue.This article examines the doctrinal origins of the New York Court of Appeals’ concepts of sexual privacy, equal protection and substantive due process. It also reexamines the Supreme Court’s pronouncements on sexual privacy. The article argues that the Supreme Court precedent was incorrectly interpreted and confused jurisprudential theory with constitutional mandate. However, it further states that the result in Onofre could have been the same even if its inclusion of freedom of sexual expression within the federal constitutional right of privacy.

INVESTIGASI PENDEK ATAS KESEJARAHAN TEORI HUKUM, SELAKU DISIPLIN YANG MENGEMBAN MISI TEORETIKAL BIDANG HUKUM

AbstrakThe work of Hans Kelsen which is known as "The Theory of Pure Science ofLaw" different from that of the Theory of Jurisprudence or in Dutch as"Alegemeine Rechtleer ". He desires to create a pure science of law, strippedfrom all irrelevant, and to separate jurisprudence from the social sciences.Kelsen refuses to define law as a command, for that introduces subjectiveand political considerations and he wishes his science to be truly objective.He wishes to separate the Realm of Jurisprudence from that of NaturalScience, the latter deals with couses and effects. Law and the State one reallythe same thing envisaged from different aspects. A legal order becomes aState when it has developed organs for the creation, declaration, andenforcement of law. When we look at the abstract rules we think of the legalorder, when we examine the institutions by which law is put into effect wethink of the State. But it is merely looking at the same thingfrom two angles

Punishment and Freedom: The Rabbinic Construction of Criminal Law (review)

Reviewed by: Punishment and Freedom: The Rabbinic Construction of Criminal Law Herbert W. Basser Punishment and Freedom: The Rabbinic Construction of Criminal Law, by Devora Steinmetz. Series: Divinations: Rereading Late Ancient Religion. Philadelphia: University of Pennsylvania Press, 2008. 224 pp. $55.00. Anyone who has studied bSanhedrin-Makkot should definitely read this book. Readers will find real substance in Devora Steinmetz's discussions of pagan-natural-law versus Torah-commanded-law as well as in her breathtaking feats of finely reasoned talmudic interpretation. Essentially, Steinmetz discusses a number of passages in the Bavli dealing with the death penalty. At the center of her discussion is the punishment of hereg, beheading by a sword: an act that obviously disfigures the criminal as his blood is absorbed into the earth. The Torah (Dt. 13:15) specifies this repulsive punishment solely for the inhabitants of an idolatrous city and for no other crime. There are three other manners of death that do not disfigure (especially in the talmudic etiquette of execution) because they spill no blood: stoning, choking, and burning. While the Torah mandates a death penalty for murder, it nowhere assigns any specific manner of execution. Our author sets out to unravel the rabbis' peculiar choice of decapitation to punish the crime of murder. For the rabbis, the Book of Genesis describes concepts of (near) innate, socially instilled consciousness of natural justice. They say Adam was commanded (Genesis 2:16) to obey "Noahide laws." They understood that violations of these laws incurred the punishment, each and every one, of hereg. Hereg, then, must be the punishment for infractions against natural social laws because they interfere with the efficient functioning of all society. The revelation of this punishment, made by God to Noah in the interim space between the original creation and Noah's new world, links Adam's laws to Noah's power to seek punishment for infractions of social laws. But only one crime [End Page 164] and ensuing punishment is cited in scripture, namely, Genesis 9:6, which says, in effect, "you kill a person and a person will kill you"—natural justice. The rabbis reasoned that since murder is only one of the universal prohibitions in Noahide Laws and is punishable through spilling the blood of the criminal, so it must follow that all the other universal Noahide Laws were meant to be punished by the "spilling of blood" (hereg by sword). The rabbis noted this is the only punishment mentioned anywhere in the Torah (Dt 13:15) that cannot help but spill blood. So murder, unlike any other capital crime, is not only an infraction against divine command; it is first and foremost an infraction of natural, social law, punishable by decapitation. In scripture's poetic, perhaps even mythic, view this harsh consequence is rooted in the natural underpinnings of Creation. Genesis 4:10 describes how the murdered Abel's blood "cries" out for justice from the stained earth. Numbers 35:16–21: says that premeditated murder requires restoration for the bloodied earth through bloody retribution by natural justice meted out by wronged family members. Steinmetz's discussion of the spilling of the blood of a heifer (Dt. 21: 8-9) for unsolved murders accompanied by a recitation, referring to "spilled innocent blood," and atonement, adds a nice flourish to her argument. In spite of murder being an intuitive social wrong, the rabbis picture the judicial proceedings of hereg as following all warrants of mishnaic theories of revealed, positive law. The basic principle the rabbis wanted to enunciate was that revealed law at Sinai entails a legal construct in the theory of jurisprudence where the Torah conceives as the Jew as a free agent, able to make responsible choices. Consequently, offenders must be punished for infractions against God's commandments so the law remains above them and not beneath them. And this holds also for willful murder which, notwithstanding its social source, defies God's command. Bavli reflects on the nature of crime prohibited by commandment and its specified punishment, which is unlike natural law. The latter is imbued by society or nature into the fabric of human consciousness. The former demands proof of the expressed mental awareness...

Judging Emmanuel Levinas? Some Reflections on Reading Levinas, Law, Politics

Marinos Diamantides, in presenting these ten prescient essays many of which have previously been published highlights the pertinence of the wisdom of Emmanuel Levinas to understanding as well as 'doing' law and politics.1 Reading Levinas requires enormous exegetical labours; the dense intertextuality of his cor pus remains forbidding, even for the cognoscenti; and the fusion of the philosophic and messianic does not authorize any cash and carry'practices of reading.'Vulgar Levinasianism is as important to avoid as Vulgar Marxism. C. Fred Alford (Chapter 6) renders the former as the phenomenon of the 'Levinas effect', that is the ability of Levinas' texts to say anything that the reader wants to hear' (107). The work under review exemplifies for the most part the gains of understanding aris ing from resisting the 'Levinas effect'. It also provides a safe harbour for those as yet unfamiliar with Levinas' relation to legal and political theory. It also goes beyond understanding Levinas to the task of judging him, in the distinctive realms of contemporary political and jurisprudential theory. Levinas constitutes an alien presence to both mainstream and subaltern legal theory and practice. Outside a niche of critical jurisprudential scholarship,2 the reception of Levinas in Anglo-American legal theory remains minimal. Even more disappointing is the fact that the field of professional legal ethics is as yet uninformed by Levinas.3 How may we understand this not-so-benign neglect? Is it because Levinas does not directly address the genre of the modern/postmodern

Inaccessible and Unknowable: Accretion and Uncertainty in Modern Criminal Law

Between May 1997 and August 2006 over 3,000 new crimes and offences entered the statute book expanding the criminal law exponentially and insinuating criminal liability into areas of everyday life previously untouched. This unremitting intensification of the criminal law where often quite random and unrelated provisions are embedded in huge, generic and virtually annual Criminal Justice Acts has made the law inaccessible and unknowable to the public, and uncertain to those charged with interpreting and applying it. This article examines the phenomenon of accretion in the criminal law within the last decade drawing on historico-legal contexts, jurisprudential theory (particularly the Rule of Law), and contemporary illustrations. It argues that uncontrolled legislative accretion and a bloated statute book may introduce dangerous levels of uncertainty into the law not only undermining its integrity but eroding the essential mutual respect between government and the governed which legitimises the authority of the criminal law. The political hothouse of spin-cycle government has sought to rely on the creation of new law as the panacea to all ills blurring the democratic boundary between citizen and government.

Textualism, structuralism and originalism: the art of the NPC Standing Committee's interpretations of the Basic Law

本文分析了香港回归以来全国人大常委会对香港基本法三次解释中所采用的法律解释方 法， 包括文本解释、结构解释和立法原意解释等。文章强调“人大释法”在娴熟地采用这些 法律解释方法时对法理学说的运用。文章指出， 在居港权案中， 特区终审法院与人大释法在 法律解释方法上的分歧主要在于确定体现立法原意的权威本文的过程中， 究竟是采取程序主 义的形式审查， 还是实质主义的意图推定， 这不仅是法律解释方法的不同， 而且是法理学说 和政治立场的不同。在此基础上， 文章批评了立法者不适宜解释法律的流行偏见， 呼吁将基 本法纳入到国家宪政体制中来理解。 This paper offers an analysis of the approaches employed in the three interpretations of the Basic Law of the Special Administrative Region of Hong Kong by the Standing Committee of the National People's Congress (NPC) after the return of Hong Kong to China, including textualism, structural reading and originalism. The paper stresses the application of jurisprudential theory in the skilful employment of these methods in the NPC interpretations. In the case of “the right of abode” in Hong Kong the differences between the interpretations by the Court of Final Appeal of Hong Kong and by the NPC rest mainly in whether a formalist procedural review or a substantivist presumption of intent should be adopted in the process of determining an authoritative text that embodies the original intention of the legislation. That is not just a difference of legal interpretation but also one of jurisprudential theory and political stance. Based on the above considerations, this paper criticizes the common misconception that it is not appropriate for legislators to undertake legal interpretation, and calls for an understanding of the Basic Law in the framework of Chinese constitutional government.

The People's Court: A Review of MacNeil, Lex Populi

William MacNeil's book is that rarest of rarae aves - a serious legal study that is fun to read. As its name implies, the book examines 'people's law' or, more loosely, 'pop law' - law as reflected by contemporary popular culture. More precisely, MacNeil shows how popular culture can give us insights into both lay (mis)understandings of law as well as lofty jurisprudential theory. What distinguishes this work from many law-and-literature studies is not just his choice of texts. MacNeil avoids literature and cinema in favor of mass market entertainment and cult favorites. MacNeil's point is that the scope of law cannot be confined to the legal. Following the European tradition of speculative theory, he sees law not as an autonomous field, but as an inherent and essential part of the symbolic - the social or intersubjective order that also includes language and sexuality. Law is not that which goes on in courts, but that which structures both social relationships and subjectivity. As such, the symbolic order, which includes law, does not merely rule our trials and behavior, it inhabits our fantasies and haunts our nightmares. To know ourselves we must understand law, and vice versa. One way we can glimpse both is in the vulgar, everyday entertainments that occupy so much of our imagination and waste so much of our time.

A Definition and Defense of Hard Paternalism: A Conceptual and Normative Analysis of the Restriction of Substantially Autonomous Self-Regarding Conduct, Chapter Five - A New Normative Defense of Hard Paternalism

This is the key and final chapter of my doctoral dissertation. Chapters two, three, and four of this dissertation have already been published as free-standing law review articles. This chapter will also soon be published, though in two or three separate articles that link this normative jurisprudential theory to ongoing debates in public health. In this chapter, I offer my own theory of justified hard paternalism. My theory is, as I will explain, a beneficence-based, consequentialist argument. First, because I am not the first to make such an argument, I quickly review other beneficence-based, consequentialist arguments for the justifiability of hard paternalism. I do not systematically evaluate this literature as I did with the consent-based, deontological arguments in article for the UMKC Law Review. Rather, my objective, here, is only to provide some background. Second, in the central section of this chapter, I defend seven conditions as logically individually necessary and jointly sufficient to justify hard paternalism. I first separately argue that each of the seven conditions is necessary for justified hard paternalism. I then argue that the seven conditions are jointly sufficient for justified hard paternalism. Specifically, I argue that hard paternalistic liberty limitation (HPLL) is justified if and only if: (1) there is strong evidence that each of the following six conditions is satisfied, (2) the objective of the HPLL is to protect the subject from significant harm, (3) the subject has either a low autonomy interest or an irrational (though substantially autonomous) high autonomy interest in the restricted conduct, (4) the HPLL is imposed only if no morally preferable, less autonomy restrictive alternatives (e.g. soft paternalism) for achieving the objective are available, (5) the HPLL has a high probability of success/effectiveness, (6) the harm from which the HPLL protects the subject outweighs any harm caused by the HPLL itself, and (7) the HPLL is least restrictive as necessary. Third, in the final section of this chapter, I deal with the most typical counterarguments to justified hard paternalism. While I will motivate and answer a number of objections and counterexamples in the course of defending - in the middle section of this chapter - the individual necessity and joint sufficiency of my seven conditions; in the final section of this chapter, I separately state and respond to the four strongest standard objections to hard paternalism. These objections are: (1) the slippery slope argument - in both its logical and empirical forms, (2) the argument from paternalistic distance - also known as the best judge argument, (3) the argument from the developmental value of choice, and (4) the argument from the oppression of individuality.

Part of the Problem or Part of the Solution? Legal Positivism and Legal Education

Jurisprudential scholar J M Balkin proposes that understanding law for the purpose of learning and being able to apply it requires a conscious and active engagement on the part of the individual attempting to understand law and, by corollary, a consideration of the individual’s subjective contribution to law. Ignorance of the individual and his or her contribution to what law is, Balkin argues, prevents legal understanding. In the exploration of why or how law comes to be regarded as coherent — a process Balkin describes as ‘understanding legal understanding’ — Balkin posits that it is not sufficient merely to acknowledge the individual. Rather, the individual’s contribution to determinations of legal coherence must be considered in order to understand law. A similar focus on the role of the individual in understanding lies at the heart of David Ausubel’s epistemological theory of meaningful learning and its practical application in the concept mapping method developed by Joseph Novak. This paper links Balkin’s jurisprudential theory of legal understanding and Ausubel’s theory of meaningful learning and proposes the concept mapping method as a way to facilitate legal understanding.

The Empire Strikes Back: A Critique of Ronald Dworkin's Law's Empire

In conflicts arising under the Constitution between individual liberties and the public good, which must yield? The Supreme Court's decision in Brown v. Board of Education can be characterized as morally right, but was it legally right? Are there answers to these tough questions? What does Dworkin think? This paper will attempt to objectively, but critically address: (1) the scope of Dworkin's project; (2) his methodology; (3) primary assumptions on which his arguments rest; and (4) his views on the nature of the law and adjudication and the shortcomings of such theories. Although Dworkin's interpretive and legal integrity theories have contributed significantly to Anglo-American jurisprudential philosophy, this essay will attempt to explain Dworkin's jurisprudential theories while demonstrating their respective shortcomings.

Controlling the Common Law: A Comparative Analysis of No-Citation Rules and Publication Practices in England and the United States

England and America have taken divergent approaches to publication practices and no-citation rules. The English rules limit the right of lawyers to cite unreported judgments and are a sharp break with centuries of tradition. The American rule freely permits citation to unpublished opinions in the federal courts. A historical introduction to publication and citation practices in both countries establishes the context for this comparison. Efficiency arguments asserting that no-citation rules save judges and lawyers time and clients money were advanced in both jurisdictions. This article explores why efficiency arguments were the basis for the adoption of the English rules but were advanced, studied and rejected in America. Policy concerns over no-citation rules’ impact on transparency, accountability and freedom of expression were raised in American but not in England. Distinctions between the oral and written traditions, unique traits of each countries judiciary and different substantive rights explain the varying levels of concern over these policy issues. The article concludes with a prediction of the impact no-citation rules will have on the future of the common law through an examination of the precedential value of unreported and unpublished cases, the judiciaries’ role in controlling the growth of the common law, jurisprudential theories and the enforcement of the rules.

What is the Internal Point of View?

In Concept of Law, Hart showed that sanction-centered accounts of every stripe ignored an essential feature of law. This feature he termed the internal point of view. Seen from the internal point of view, the law is not simply sanction-threatening, directing, or predicting, but rather obligation-imposing. Though the internal point of view is perhaps Hart's greatest contribution to jurisprudential theory, this concept is also often and easily misunderstood. This is unfortunate, not only because these misreadings distort Hart's theory, but, more importantly, because they prevent us from appreciating the true infirmities of sanction-centered theories and the compelling reasons why they ought to be rejected. In this paper, I try to address some of these confusions. What, exactly, is the internal point of view? What role (or roles) does it play in Hart's theory? And how does an adequate appreciation for the centrality of the internal point of view lead to the rejection of sanction-centered theories? Briefly, my answers will be as follows. The internal point of view is the practical attitude of rule-acceptance - it does not imply that people who accept the rules accept their moral legitimacy, only that they are disposed to guide and evaluate conduct in accordance with the rules. The internal point of view plays four roles in Hart's theory: (1) it specifies a particular type of motivation that someone may take towards to the law; (2) it constitutes one of the main existence conditions for social and legal rules; (3) it accounts for the intelligibility of legal practice and discourse; (4) it provides a naturalistically acceptable semantics for legal statements. Finally, sanction-centered theories are unacceptable for three reasons: (1) they are myopic in that they ignore one of the motivations that people might have for obeying the law; (2) they are unable to account for the existence of legal systems; (3) they cannot account for the intelligibility of legal practice and discourse.

World Law: An Ecumenical Jurisprudence of the Holy Spirit

By is meant the common features of the legal systems of the world, and especially the body of customary law that is gradually being created by the people of the world in their transnational interrelationships. Included are many aspects of world economic law, such as bankers' letters of credit, negotiable instruments, and documentary trade terms. Included also inter alia are world sports law enforced by the Court of Arbitration of Sport in Lausanne, Switzerland, universal criminal law administered by the International Criminal Court, much of intellectual property law, and much of human rights law. The article proposes a theory of jurisprudence that is appropriate to the development of such a common law of mankind. Such a jurisprudence would integrate the traditional schools of positivism, natural-law theory, and the historical school - positivism stressing will (the policies of the lawmaker), natural law stressing reason (moral values inherent in human nature), and the historical school stressing group memory (community traditions). According to St. Augustine, these three interlocking qualities of the human mind - will, reason, and memory - reflect the image of the tri-une God and were implanted by Him in man. In the West, the three schools of legal thought split apart from each other in the nineteenth and early twentieth centuries. In the new world economy and the emerging world society of the late twentieth and twenty-first centuries, the Holy Spirit challenges us to re-integrate them in the gradual creation of the body of world law.

Playing with Hutchinson’s Nonfoundationalism

Although we are provided with a clever game of metaphor for the description of adjudication and a rather diverse survey of other jurisprudential theories, Hutchinson fails to provide a distinct, coherent, theory of adjudication. He either overly radicalizes foundationalism or under radicalizes antifoundationalism.

Positivism, Idealism and the Rule of Law

The modem lawyer operates within a conception of law as a body of rules. To confront the law of contract, of torts, or of property, is to familiarize oneself with an intricate set of rules. Such familiarity is not yet legal scholarship, much less legal practice. For in order to use the rules as lawyers use them, the rules must be contemplated and considered, and the relationship between the different rules must be understood. Because the intellectual processes involved in handling the rules exhibit a high degree of sophistication, those intellectual processes may themselves become the subject matter of philosophical argument. Thus we may regard jurisprudential theories as embodying differing understandings of the processes of handling legal rules; and we may conceive of legal theory as the attempt to grasp the moral significance of rules as a foundation for social order. This essay shall offer some thoughts on the relationship between the rule of law, considered as a moral ideal, and the notion of rules as the principal means by which legal order is manifested. 1. Positivism, Idealism and Common Law When juristic thinking emerged from the early modern age and entered the 18th century, the notion of rule through law came increasingly to be associated with the idea of government through rules. Yet the same intellectual conditions which had brought about the evolution (in Hume's words) from a government of will to a government of law, also encouraged an interpretation of those developments along lines which were fundamentally alien to the legal conceptions and practices from which those ideas had emerged. Two traditions of thought would come to dominate speculative debate about the nature of law as a social institution: moral idealism, which continued to locate the foundations of law's authority in the system of natural rights; and an empirically-minded version of liberalism, which would ultimately develop into an austere form of legal positivism, and which would emphasize law as an instrument of deliberate social engineering. The effect of this debate was to change fundamental features of common law scholarship, both through the development of doctrinal legal science and, at the same time, through a changing conception of juristic speculation as a body of questions about doctrinal science. It is idealism, rather than positivism, which might be thought of as more closely describing the forms of reasoning and scholarship which embody traditional * Reader in Jurisprudence, University College London. Email: s.coyle@ucl.ac.uk. ? The Author 2006. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org This content downloaded from 157.55.39.209 on Sat, 14 May 2016 06:21:20 UTC All use subject to http://about.jstor.org/terms 258 Oxford Journal of Legal Studies VOL. 26 common law practice. For idealism, with its emphasis on moral values and rights, seems to offer the best explanation of the characteristic fluidity of common law 'rules'. Yet insofar as the emergence of doctrinal legal science constituted a genuinely new way of thinking about the law, developments in speculative jurisprudence had rather less impact on the ordinary business of judicial argument and procedure which made up the bulk of the lawyer's intellectual engagement with the law than did the upsurge in parliamentary intervention into traditional common law areas, or the development of ideas concerning freedom of contract. A form of common law scholarship therefore continued to survive, which differs in essential respects from both positivism and idealism: a form of scholarship for which precedent and custom, rather than rights or rules, supplies the ground of authority and justification. Positivism and idealism can be regarded as attempts to theorize and regiment these traditional conceptions in ways which made them intelligible and justifiable to contemporary audiences whose understandings of social life rendered doubtful the idea that rule through law can be achieved on the basis of customs and shared practices. Both positivism and idealism, in different ways, describe a legal order constituted by a body of rules. For the positivist, political stability and social order represent a political achievement attainable only through articulated legal rules: in a world characterized by apparently unbridgeable diversity between individual conceptions of moral worth and political value, customary practices provide a doubtful focus for collective interpretations, and a system of deliberately created, authoritative rules comes to be seen as the unique means of bringing about harmony and certainty in the interpersonal relationships on which social order

About the Meaning of the Legal Aspect of Practical Semantics in Estonian Legal Order

This article is aimed at regarding, from the author’s viewpoint, one possible jurisprudential theory for rational understanding of legal order – the structuring theory of law. It is very important that cognition of a legal order should be based on the rules which could be designated as “laws of jurisprudence”. Naturally, this does not mean legislation within the concept of objective law. Rather, these laws can be referred to as certain regularities, ignorance of which would, however, either impossibly or substantially complicate the legal process of decision-making, both in law-making (as the so-called decisional function is contained in law itself1) or the practical legal process of making decisions (the application of law). In recent years, a conception involving cooperation between linguists and jurists has emerged in the discussion of jurisprudential methodology. This constitutes an interdisciplinary approach to motivation of legal decision-making and involves, on the one hand, “practical semantics” and researchers thereof,2 and on the other hand, representatives of the so-called structuring theory of law.3 In specialist literature, the structuring theory of law has also been referred to as the Muller Schoo1.4 The role of language and linguistic arguments in the discussion and practice of legal working methods serves as a connective principle in such interdisciplinary approach (co-operation).

World Law: An Ecumenical Jurisprudence of the Holy Spirit

By is meant the common features of the legal systems of the world, and especially the body of customary law that is gradually being created by the people of the world in their transnational interrelationships. Included are many aspects of world economic law, such as bankers' letters of credit, negotiable instruments, and documentary trade terms. Included also inter alia are world sports law enforced by the Court of Arbitration of Sport in Lausanne, Switzerland, universal criminal law administered by the International Criminal Court, much of intellectual property law, and much of human rights law. The article proposes a theory of jurisprudence that is appropriate to the development of such a common law of mankind. Such a jurisprudence would integrate the traditional schools of positivism, natural-law theory, and the historical school - positivism stressing will (the policies of the lawmaker), natural law stressing reason (moral values inherent in human nature), and the historical school stressing group memory (community traditions). According to St. Augustine, these three interlocking qualities of the human mind - will, reason, and memory - reflect the image of the tri-une God and were implanted by Him in man. In the West, the three schools of legal thought split apart from each other in the nineteenth and early twentieth centuries. In the new world economy and the emerging world society of the late twentieth and twenty-first centuries, the Holy Spirit challenges us to re-integrate them in the gradual creation of the body of world law.