The Rule of Law and Legal State Doctrines as a Methodology of the Philosophy of Law

ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

Download Full-text

Philosophy of Law: Normative Foundations

Philosophy ◽

10.1093/obo/9780195396577-0102 ◽

2012 ◽

Author(s):

John Oberdiek

Keyword(s):

Rule Of Law ◽

Legal Theory ◽

Philosophy Of Law ◽

Individual Liberty ◽

The Rule Of Law ◽

Theories Of Punishment ◽

The Common ◽

The Relationship ◽

Normative Foundations ◽

Vast Territory

This article on the philosophy of law focuses on contemporary discussions of law’s normative foundations. This branch of philosophy of law, also called normative legal theory, overlaps with topics in political philosophy and ethics, as well as with analytical general jurisprudence, and it is a lively and rich area of philosophical research. As this description suggests, normative philosophy of law covers a vast territory. A case could easily be made to include several dozen more topics under this heading, or indeed to devote separate overarching entries to many of the topics that might be subsumed under normative philosophy of law. The philosophy of criminal law, for example, comprises far more than theories of punishment. This is all to say that what follows is but a primer. The common focus of the following topics is the relationship between individuals and the state. Examining that relationship has long been a principal concern of normative philosophy of law. More specifically, normative philosophy of law in the dominant Anglophone tradition has long been devoted to exploring the state’s role in alternately protecting and constraining individual liberty through law. This article charts aspects of that alternating role, focusing on authority, the duty to obey the law, the rule of law, rights, legal moralism, and punishment.

Download Full-text

Thomas Bustamante et Oche Onazi (dir.), Global Harmony and the Rule of Law. Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009, t. I, Stuttgart, Franz Steiner Verlag, 2012, 133 p., ISBN 978-3-8329-7429-9 Thomas Bustamante et Oche Onazi (dir.), Human Rights, Language and Law. Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009, t. II, Stuttgart, Franz Steiner Verlag, 2012, 192 p., ISBN 978-3-8329-7430-5 Thomas Bustamante et Carlos Bernal Pulido (dir.), On the Philosophy of Precedent. Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009, t. III, Stuttgart, Franz Steiner Verlag, 2012, 144 p., ISBN 978-3-8329-7625-5

Les Cahiers de droit ◽

10.7202/1031354ar ◽

2015 ◽

Vol 56 (2) ◽

pp. 218

Author(s):

Bjarne Melkevik

Keyword(s):

Human Rights ◽

Rule Of Law ◽

International Association ◽

Social Philosophy ◽

Philosophy Of Law ◽

World Congress ◽

The Rule Of Law ◽

Language And Law

Download Full-text

Austin, Hobbes, and Dicey

Canadian Journal of Law & Jurisprudence ◽

10.1017/s0841820900005245 ◽

2011 ◽

Vol 24 (2) ◽

pp. 409-430

Author(s):

David Dyzenhaus

Keyword(s):

Rule Of Law ◽

Basic Problem ◽

Legal Theory ◽

Point Of View ◽

Legal Positivism ◽

Philosophy Of Law ◽

Moral Ideal ◽

The Rule Of Law ◽

Rule By Law ◽

Making Sense

I argue that attention to Austin helps us to appreciate that there are significant continuities between his legal theory and that of contemporary positivists; hence, to the extent that Austin’s theory has defects, these are reproduced in the work of contemporary legal positivism. An historical perspective on contemporary philosophy of law thus permits one to appreciate that the basic divide in legal theory is between a tradition whose basic intuition is that law is answerable to a moral ideal of legality and the positivist tradition that sees law as the transmitter of political judgment. For the former, the rule of law tradition, the basic problem for philosophy of law is to explain the distinction between the rule of law and the arbitrary rule of men. For the latter, the rule by law tradition, the basic problem is to explain how law can effectively transmit the judgments made political elites. The rule by law tradition encounters severe difficulties in making sense of the idea of government according to law, difficulties which reach their height once legal positivists accept, following Hart, that philosophy of law has to understand law as a normative phenomenon, which in turns requires taking seriously the internal point of view of legal officials.

Download Full-text

John Ayotunde Isola Bewaji. The Rule of Law and Governance in Indigenous Yoruba Society: A Study in African Philosophy of Law. Lexington Books, 2016, 282 pages

Yoruba Studies Review ◽

10.32473/ysr.v1i2.130173 ◽

2021 ◽

Vol 1 (2) ◽

Author(s):

Segun Gbadegesin

Keyword(s):

Rule Of Law ◽

African Philosophy ◽

Philosophy Of Law ◽

The Rule Of Law

Review of John Ayotunde Isola Bewaji's The Rule of Law and Governance in Indigenous Yoruba Society: A Study in African Philosophy of Law. Lexington Books, 2016, 282 pages.

Download Full-text

Die Gewalt des Rechts

10.5771/9783748927709 ◽

2021 ◽

Author(s):

Christian Kalthöner

Keyword(s):

Rule Of Law ◽

Walter Benjamin ◽

Philosophy Of Law ◽

Giorgio Agamben ◽

Basic Principles ◽

The Rule Of Law ◽

Modern Idea ◽

Legal Perspective ◽

Critique Of Violence

The modern idea of the rule of law is based on the assertion that with the establishment of law as a central instrument of control, the incidence of violence within society could be reduced. This understanding of law is radically questioned by Walter Benjamin in his essay "Critique of Violence" and by certain poststructural authors; for them law itself is entangled in a violent momentum. This study reconstructs the discourse between Walter Benjamin, Jaques Derrida, Giorgio Agamben, and Christoph Menke on the violence of law and reflects on it from a legal perspective. In doing so, it addresses both – the philosophy of law as well as jurisprudence interested in basic principles of law.

Download Full-text