Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory

2021 ◽  
Vol 34 (1) ◽  
pp. 171-202
Author(s):  
Brian Z. Tamanaha
Keyword(s):  
Twentieth Century ◽  
Coercive Force ◽  
Social Life ◽  
Conceptual Analysis ◽  
Legal Theory ◽  
A Priori ◽  
Planning System ◽  
Universal Feature ◽  
Moral Problems ◽  
Theory Of Law

A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.

Kelsen, Legal Normativity, and Formal Justice in International Relations

2013 ◽  
Vol 26 (4) ◽  
pp. 1037-1053 ◽  
Author(s):  
JOSHUA PAINE
Keyword(s):  
Legal Theory ◽  
A Priori ◽  
Methodological Choices ◽  
Theories Of Justice ◽  
Theory Of Law ◽  
The One ◽  
Legal Normativity ◽  
Legal Sense ◽  
Formal Justice ◽  
Legal Meaning

Hans Kelsen's vast body of work is perhaps one of the best examples of the unremarkable but important point that one's legal theory and methodological choices are intricately tied up with how one understands international law. Kelsen stands for a huge number of different positions, but chief amongst them must be his insistence on developing a ‘pure’ theory of law that accounted for the unique normativity of law, separate from empirical facts and causality on the one hand, and substantive theories of justice on the other. For Kelsen, the unique normativity of law is found within the legal system itself, in the idea of normative imputation – the ‘linking of a conditioning material fact with a conditioned consequence’. According to Kelsen, this specifically legal sense of ‘ought’ is an a priori category that allows us to correctly cognize the legal meaning of empirical data.

scholarly journals Individual and Social in L.I. Petrazhitsky's Philosophy of Law

2021 ◽  
Vol 25 (3) ◽  
pp. 513-523
Author(s):  
Leonid Yu. Kornilaev
Keyword(s):  
Social Order ◽  
Social Life ◽  
Legal Theory ◽  
Psychological Theory ◽  
Life Forms ◽  
Mental Life ◽  
Emotional Life ◽  
The Social ◽  
The Law ◽  
Theory Of Law

Along with competing legal concepts of positivism and gnoseologism in the second half of the 19th century, a direction of legal psychology was formed, within which the psychological theory of law by the Russian and Polish lawyer L.I. Petrazhitsky takes a prominent place. L.I. Petrazhitsky's legal theory interprets the law as a mental phenomenon in a person's mind. The mental life forms the internal and external legal behavior. Studying the law becomes possible only by analyzing the subject's particular kind of emotional life - legal experience. Our focus on the individual's emotional world gives us reason to think of the theory as individualistic, i.e., close to the subject's mental life. At the same time, the Russian lawyer's psychological doctrine also gains explanatory potential for scrutinizing social life. It contains ideas that reveal such mechanisms of social functioning as the affirmation of the ideal of love as the ultimate goal of law-making, the priority of unofficial law in the life of society, and a specific interpretation of public and private law. The system of legal emotions is carried out on the social niveau and establishes such values as love and social order. The article reconstructs the main provisions of Petrazhitsky's psychological theory of law from the point of view of the interaction of its individual and social sides. The social potential of the Russian lawyer's theory appears capable of supplementing and explaining the ideas of socialism and sobornost discussed widely at the turn of the 19th and 20th centuries. Petrazhitsky's individualistic doctrine appears as a flexible concept, capable of fitting organically into various philosophical and sociological contexts.

Conceptual analysis

2018 ◽  
Author(s):  
Robert Hanna
Keyword(s):  
Twentieth Century ◽  
Conceptual Analysis ◽  
A Priori ◽  
The Other ◽  
Philosophical Theory ◽  
Philosophical Inquiry ◽  
The Usa ◽  
Paradox Of Analysis ◽  
The One ◽  
Definition Of

A distinction must be made between the philosophical theory of conceptual analysis and the historical philosophical movement of Conceptual Analysis. The theory of conceptual analysis holds that concepts – general meanings of linguistic predicates – are the fundamental objects of philosophical inquiry, and that insights into conceptual contents are expressed in necessary ’conceptual truths’ (analytic propositions). There are two methods for obtaining these truths: - direct a priori definition of concepts; - indirect ’transcendental’ argumentation. The movement of Conceptual Analysis arose at Cambridge during the first half of the twentieth century, and flourished at Oxford and many American departments of philosophy in the 1950s and early 1960s. In the USA its doctrines came under heavy criticism, and its proponents were not able to respond effectively; by the end of the 1970s the movement was widely regarded as defunct. This reversal of fortunes can be traced primarily to the conjunction of several powerful objections: the attack on intensions and on the analytic/synthetic distinction; the paradox of analysis; the ‘scientific essentialist’ theory of propositions; and the critique of transcendental arguments. Nevertheless a closer examination indicates that each of these objections presupposes a covert appeal to concepts and conceptual truths. In the light of this dissonance between the conventional wisdom of the critics on the one hand, and the implicit commitments of their arguments on the other, there is a manifest need for a careful re-examination of conceptual analysis.

Being Numerous

2011 ◽  
Author(s):  
Oren Izenberg
Keyword(s):  
Twentieth Century ◽  
Social Life ◽  
Avant Garde ◽  
Literary Life ◽  
Aesthetic Politics ◽  
The Face ◽  
The Common ◽  
Century Poetry ◽  
Practical Question ◽  
Language Poets

This book offers a new way to understand the divisions that organize twentieth-century poetry. It argues that the most important conflict is not between styles or aesthetic politics, but between poets who seek to preserve or produce the incommensurable particularity of experience by making powerful objects, and poets whose radical commitment to abstract personhood seems altogether incompatible with experience—and with poems. Reading across the apparent gulf that separates traditional and avant-garde poets, the book reveals the common philosophical urgency that lies behind diverse forms of poetic difficulty—from William Butler Yeats's esoteric symbolism and George Oppen's minimalism and silence to Frank O'Hara's joyful slightness and the Language poets' rejection of traditional aesthetic satisfactions. For these poets, what begins as a practical question about the conduct of literary life—what distinguishes a poet or group of poets?—ends up as an ontological inquiry about social life: What is a person and how is a community possible? In the face of the violence and dislocation of the twentieth century, these poets resist their will to mastery, shy away from the sensual richness of their strongest work, and undermine the particularity of their imaginative and moral visions—all in an effort to allow personhood itself to emerge as an undeniable fact making an unrefusable claim.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

The sociocultural realm in relation to environment, biology, and history: Notes on Van Gennep and the emerging social sciences of his day

2018 ◽  
Vol 18 (4) ◽  
pp. 330-337
Author(s):  
Harvey E Goldberg
Keyword(s):  
Social Sciences ◽  
Twentieth Century ◽  
Natural Environment ◽  
Social Life ◽  
Cultural Anthropology ◽  
American School ◽  
Broad Approach

Van Gennep’s research interests were located in the region where the fields of folklore, anthropology, sociology, and religion overlapped. His Rites de passage reflected a broad approach to ritual and social life that took into account the natural environment, biology, and history. This article scans his interests and emphases in relation to the American school of cultural anthropology that developed in the twentieth century. It assesses parallels and differences, and points to areas deserving further clarification such as Van Gennep’s understanding of language.

scholarly journals Introduction: Know Thyself

2018 ◽  
pp. xii-20
Author(s):  
Richard G.T. Gipps ◽  
Michael Lacewing
Keyword(s):  
Twentieth Century ◽  
Social Life ◽  
Free Association ◽  
Inner Life ◽  
Aesthetics And Politics ◽  
Central Concept ◽  
The Unconscious ◽  
The Temple

This Handbook examines the contributions of philosophy to psychoanalysis and vice versa. It explores the most central concept of psychoanalysis—the unconscious—in relation to its defences, transference, conflict, free association, wish fulfilment, and symbolism. It also considers psychoanalysis in relation to its philosophical prehistory, the recognition and misrecognition afforded it within twentieth-century philosophy, its scientific strengths and weaknesses, its applications in aesthetics and politics, and its value and limitations with respect to ethics, religion, and social life. The book explains how psychoanalysis draws our attention to the reality of central aspects of the inner life and how philosophy assists psychoanalysis in knowing itself. This introduction elaborates on the phrase ‘know thyself’, the words inscribed at the Temple of Delphi, and illustrates the connection between matters philosophical and psychoanalytic in relation to the Delphic command by highlighting their mutual concern with truth and truthfulness.

The Persistence of Formalism: Towards a Situated Critique beyond the Classic Separation of Powers

2010 ◽  
Vol 3 (2) ◽  
Author(s):  
Jose R. Rodriguez
Keyword(s):  
Social Relations ◽  
Social Practice ◽  
Legal Theory ◽  
Separation Of Powers ◽  
Academic Research ◽  
The Social ◽  
Critical Legal Theory ◽  
Theory Of Law ◽  
General Method

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.

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