Legal Theory

Norberto Bobbio's Legal Theory and Kelsen's Heritage

by Mario Ricciardi

paper presented at the Department of Philosophy, The University of Manchester, December 1995

You [Still] Can’t Get Married, You're Faggots

by Jacob Held

Draft of a Revised version of my paper "You Can't Get Married You're Faggots," for the upcoming "Ultimate South Park and Philosophy" edited by Robert Arp (Wiley-Blackwell)

This is an update of the chapter published several years ago. It includes updated info on the status of marriage... more This is an update of the chapter published several years ago. It includes updated info on the status of marriage rights in the country, legal trends, and minor alterations making it, I think, better.

Developing a Discursive Analysis of Legal Transfers into Developing East Asia

by John Gillespie

41 New York University Journal of International Law and Politics, (2) (2008) pp. 101-161

Scholarly interest in the transnational circulation of legal ideas has increased in tandem with the growth of global... more Scholarly interest in the transnational circulation of legal ideas has increased in tandem with the growth of global trading blocks and the proliferation of law reforms projects in developing countries. It is timely to evaluate how successfully current theories about legal transfers, which arose from European and North American experiences, explain the diffusion of legal ideas into non-western legal systems, especially those in developing East Asia. This article argues that current theories propose misleading criteria to explain legal transfers into this rapidly transforming region, because they rarely consider comparative scholarship showing that much economic regulation takes place outside ‘rule of law’ legal doctrines and institutions. As a corrective, this article proposes a decentered system of analysis that shifts the focus of attention away from state centered laws and institutions towards the dialogical exchanges at the periphery of state power that adapt and transform imported laws.

Natural Law Internalism

by Thom Brooks

Published in Thom Brooks (ed.), Hegel's Philosophy of Right. Oxford: Blackwell, 2012, pp. 167-79.

Keywords:

natural law internalism;theories of natural law externalism;Hegel's natural law... more Keywords:

natural law internalism;theories of natural law externalism;Hegel's natural law internalism;classical natural law;natural law of standard of justice, on reason;“true law” universally and eternally true;modern natural law theories;Hegel's understanding of natural law;Hegel's legal philosophy, natural law;novel reinvention of natural law

Summary
This chapter contains sections titled:

Introduction

Classical Natural Law

Modern Natural Law

Hegel's Natural Law Internalism

Natural Law Internalism or Externalism?

Conclusion

Notes

References

Law: Lex vs. Ius

by Eric Engle

Judicial Supremacy and the Politics of Executive Judicial Relations

by David Miles

Honours Dissertation for my MA at the University of St Andrews, Scotland, 2010

Analysis of the emergence of judicial supremacy within American politics, as shown in the work of Whittington, reveals... more Analysis of the emergence of judicial supremacy within American politics, as shown in the work of Whittington, reveals the important role played by political actors and particularly the presidency in the formation of the Supreme Court’s power. This dissertation builds on Whittington’s work regarding judicial supremacy but differs in the extent to which it emphasises the salient role of judicial agency in the formation of the Court’s authority. Judicial agency sees the Court as a political actor making calculations in the context of the prevailing circumstances and adopting strategies to maximise its authority. The relationship between the Supreme Court and the presidency defies easy categorisation, yet the political benefits to presidents of the Court’s ability to render favourable rulings on preferred policies appear to outweigh the undeniable disadvantages which have accrued to presidents from their recognition of judicial authority.

Smoke and Mirrors or Science? Teaching Law with Computers-A Reply to Cass Sunstein on Artificial Intelligence and Legal Science

by Eric Engle

An Introduction to Artificial Intelligence and Legal Reasoning: Using xTalk to Model the Alien Tort Claims Act and Torture Victim Protection Act

by Eric Engle

ARTICLE: THE FAILURE OF THE NATION STATE AND THE NEW INTERNATIONAL ECONOMIC ORDER

by Eric Engle

Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia

by Simon Springer

Springer, S. Forthcoming. Illegal evictions? Overwriting possession and orality with law’s violence in Cambodia. Journal of Agrarian Change.

The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of... more The unfolding of a juridico-cadastral system in present-day Cambodia is at odds with local understandings of landholding, which are entrenched in notions of community consensus and existing occupation. The discrepancy between such orally recognized antecedents and the written word of law have been at the heart of the recent wave of dispossessions that have swept across the country. Contra the standard critique that corruption has set the tone, this paper argues that evictions in Cambodia are often literally underwritten by the articles of law. Whereas ‘possession’ is a well-understood and accepted concept in Cambodia, a cultural basis rooted in what James C. Scott refers to as ‘orality’, coupled with a long history of subsistence agriculture, semi-nomadic lifestyles, barter economies, and–until recently–widespread land availability have all ensured that notions of ‘property’ are vague among the country’s majority rural poor. In drawing a firm distinction between possessions and property, where the former is premised upon actual use and the latter is embedded in exploitation, this article examines how proprietorship is inextricably bound to the violence of law.

Autonomia, neutralność, indyferentność moralna prawa w kontekście jego uspołecznienia [Autonomy, neutrality, moral indifference of law in context of socialized law] (DRAFT)

by Michał Dudek

Paper presented at the 14th Polish Sociological Congress, in the 4th Forum of Sociologists of Law „Public Sphere – Functions, Dysfunctions, Official and Unofficial Norms”, September 8-11, 2010, Krakow, Poland.

Publication scheduled for the beginning of 2013.

Publication details: to be announced.

This paper is an attempt to look at concept of moral neutrality/autonomy of law from socio-legal perspective,... more This paper is an attempt to look at concept of moral neutrality/autonomy of law from socio-legal perspective, emphasizing the ideal of socialized law. Notion of moral indifference of law is helpful in argumentation. It is shown that moral neutrality/autonomy of law is highly problematic, e.g. it is not specified toward whose and which morality should the legislator be neutral and is it even possible to be characterized by such attitude. Focus is placed on the issue that neutral motives not always result in neutral law. It justifies view that neutrality/autonomy is make-believe, leads to manipulation in legislation process and formation of questionable unofficial norms. Assuming that every law can be treated by its addressees as oppressive, the best way to prevent it is to aim at socialized law.

Artykuł jest próbą spojrzenia na koncepcję neutralności/autonomii moralnej prawa z socjologiczno-prawnej perspektywy, akcentując ideał prawa uspołecznionego. Pojęcie indyferentności moralnej prawa jest pomocne w argumentacji. Wykazuje się, że neutralność/autonomia moralna prawa jest wysoce problematyczna, np. nie jest określone wobec czyjej i jakiej moralności ustawodawca powinien być neutralny, a także czy w ogóle może on charakteryzować się taką postawą. Uwagę skupia się na tym, że neutralne motywy nie zawsze skutkują w neutralnym prawie. Usprawiedliwia to opinię, że neutralność/autonomia jest fasadowa, prowadzi do manipulacji w procesie ustawodawczym i wykształcenia się łatwych do zakwestionowania norm nieoficjalnych. Przyjmując, że każde prawo może być traktowane przez swoich adresatów jako opresyjne, najlepszym sposobem przeciwdziałania temu jest dążenie do uspołecznionego prawa.

Paternalistic Regulations Expressed through Means of Visual Communication of Law? Contribution to Another Distinction of Paternalistic Legal Regulations

by Michał Dudek

Published in: Michał Araszkiewicz, Matěj Myška, Terezie Smejkalová, Jaromír Šavelka, Martin Škop (eds.), "Argumentation 2011. International Conference on Alternative Methods of Argumentation in Law. Conference Proceedings", MUNI Press, Brno 2011, pp. 167-179. ISBN 978-80-210-5579-7

The aim of this article is to outline the issue of paternalistic legal regulations being expressed through means of... more The aim of this article is to outline the issue of paternalistic legal regulations being expressed through means of visual communication of law, such as often used in legal realm “optical signs, which are not expressions of ethnic written language”, that is, through traffic signs. Main focus is placed on one particular prohibitory traffic sign, “no entry” sign, which often is placed at the exit ends of one-way streets to determine traffic direction. On the one hand, this analysis can be treated as a specific attempt to supplement the debate on legal paternalism. Namely, it stresses the issue of characteristic features of danger, risk of harm justifying given legal regulation, which restricts its addressees’ liberty, whether to “protect (...) from self-inflicted harm or (...) to guide them (...) toward their own good”. It is proposed to distinguish two kinds of danger underlying paternalistic regulations: so-called “natural” danger and so-called “conventionally-made” danger. Apart from this, the problem of visual communication through traffic signs is outlined.

“Signorolus de Homodeis and the Medieval Interpretation of Statutory Law”, Rivista Internazionale di Diritto Commune 6 (1995) 217-232

by Wolfgang P. Mueller

Metaphors and Models in Legal Theory

by Finn Makela

(2011) 52 Les Cahiers de Droit 397.

In this article, the author argues that metaphors can be used as the basis for creating models in legal theory. more In this article, the author argues that metaphors can be used as the basis for creating models in legal theory.

Drawing on the literature on metaphor from the philosophy of language, he contends that metaphors are best understood as speech acts that propose a hypothesis of similarity between two separate domains. This kind of domain mapping, he argues, is the same procedure that underlies many scientific models, which allow us to transpose our understanding of well-understood phenomena to other areas of inquiry.

He concludes with the assertion that — far from being merely ornamental uses of language or rhetorical devices — metaphors are important methodological tools in both the construction and critique of legal theory.

The Tortological Question And The Public-Private Relationship In Tort Law

by TT Arvind

[2010] J. Juris. 349

In this paper, which is part of a collection marking the 25th anniversary of the publication of Hutchinson and... more In this paper, which is part of a collection marking the 25th anniversary of the publication of Hutchinson and Morgan's paper 'The Canengusian Connecton' I examine what light that paper sheds on the question of the public-private relationship in tort law. I argue the Canengusian judges for the most part implicitly treat tort as being either purely private in orientation or purely public, and ignore the possibility that tort law intrinsically has both private and public features. In this they reflect much (but not all) of academic writing, but stand in fairly sharp contrast to real judicial discussions of tort law, which are much more nuanced in their approach to the public-private relationship. I discuss the nature and causes of this gap and suggest that there is something to be learned from Christian theology, in particular the way it approaches questions of the dual nature of Christ as both divine and human. I draw upon the Christological theories of Dietrich Bonhoeffer to discuss how we might seek to use similar ideas to model the public-private relationship in tort law.

Beyond 'Right' and 'Duty': Lundstedt's theory of obligations

by TT Arvind

published in A Robertson and D Nolan (eds.), Rights and Private Law (Hart, Oxford: 2011) pp. 151-181

Although Vilhelm Lundstedt is principally known in the English-speaking world for his jurisprudential writings from... more Although Vilhelm Lundstedt is principally known in the English-speaking world for his jurisprudential writings from the point of view of Scandinavian realism, he also wrote extensively in Swedish on theoretical and practical issues within the law of obligations, most notably in his "Föreläsningar över valda delar av obligationsrätten" (Lectures on selected parts of the law of obligations), which appeared in eight volumes over a thirty-three year period between 1920 and 1953.  In this paper, I present an account of Lundstedt's theory of obligations drawn from his Swedish writings, and explore the relevance of his views for current debates on obligations in common law.  I focus in particular on two key strands within Lundsted's thought, which were fundamental to his views on the law of obligations, and his theory of law more generally.  The first is his well-known critique of rights, which in his writings on obligations takes the form of an express rejection of the notion that obligations are, or can be, grounded in legal rights.  The second, and less well-known, strand is his criticism of duty-based accounts of liability, and of concepts such as causation on which accounts of responsibility are based.  These views collectively led him to question the value of traditional taxonomic divisions within the law of obligations, and to reconceptualise what constituted a legal obligation with reference to the notion of "samhällsnyttan", or the good of society.  These theories, I argue, have an important contribution to make to current debates on the present and future shape of the common law of obligations, even though they may on the face of it seem fundamentally different from conventional accounts of the common law of obligations.

‘Though it shocks one very much’: Formalism and pragmatism in the Zong and Bancoult

by TT Arvind

(2012) 32 OJLS 113-151.

In Bancoult, a majority of the House of Lords upheld the British Government’s use of the royal prerogative to expel... more In Bancoult, a majority of the House of Lords upheld the British Government’s use of the royal prerogative to expel the population of the Chagos Islands from their homeland. The majority acknowledged that the Government’s treatment of the Chagossians was disturbing, but held that the law left them with no choice but to hold the orders valid. In this article, I draw a parallel between this decision and the eighteenth century judicial response to the Zong affair – where over a hundred slaves were thrown off a ship to drown in the sea. Both decisions are cloaked in formalist rhetoric but, as I show through an examination of the law as it stood prior to each of the decisions, the actual legal reasoning in both decisions is so without basis as to be unsustainable on any formalist or legalist account. Rather, the decision in Bancoult, like the decision in the Zong, shows all the hallmarks of being a purely pragmatic one, prompted by broader concerns as to the practical impact of a contrary decision and the precedent it would set. The inherent limitations of this mode of judicial reasoning make its deployment in Bancoult particularly troubling.

An Immense Task. Hart sull'obbligo di obbedire al diritto

by Aldo Schiavello

Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family

by Matthew O'Brien

Forthcoming in The British Journal of American Legal Studies, Vol. 1, Issue 2 (Summer/Fall 2012).

John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary... more John Rawls’s political liberalism and its ideal of public reason are tremendously influential in contemporary political philosophy and in constitutional law as well. Many, perhaps even most, liberals are Rawlsians of one stripe or another. This is problematic, because most liberals also support the redefinition of civil marriage to include same-sex unions, and as I show, Rawls’s political liberalism actually prohibits same- sex marriage. Recently in Perry v. Schwarzenegger, however, California’s northern federal district court reinterpreted the traditional rational basis review in terms of liberal neutrality akin to Rawls’s “public reason,” and overturned Proposition 8 and established same-sex marriage. (This reinterpretation was amplified in the 9th Circuit Court’s decision upholding the district court on appeal in Perry v. Brown.) But on its own grounds Perry should have drawn the opposite conclusion. This is because all the available arguments for recognizing same-sex unions as civil marriages stem from controversial comprehensive doctrines about the good, and this violates the ideal of public reason; yet there remains a publicly reasonable argument for traditional marriage, which I sketch here. In the course of my argument I develop Rawls’s politically liberal account of the family and defend it against objections, discussing its implications for political theory and constitutional law.

Na wojnie między konsumentem a przedsiębiorcą. [In a war between a consumer and an entrepreneur.

by Radosław Zyzik

Accepted paper; "GraniceNauki" and "Interia.pl"