Understanding Jurisprudence

2018 ◽  
Author(s):  
Raymond Wacks
Keyword(s):  
Animal Rights ◽  
Legal Theory ◽  
Legal Positivism ◽  
Extensive Literature ◽  
Economic Analysis Of Law ◽  
Experienced Teacher ◽  
Starting Point ◽  
The Social ◽  
Feminist Theories ◽  
The Law

With a clear, engaging, and informal style, Understanding Jurisprudence is the perfect guide for students new to legal theory looking for a handy and stimulating starting point to this sometimes daunting subject. Key theories and theorists are introduced in a compact and practicable format, offering an accessible account of the central ideas without oversimplification. Further reading suggestions are included throughout, helping students to structure their research and navigate the jurisprudence’s extensive literature. Critical questions are also included in each chapter, to encourage students to think analytically about the law and legal theory, and the numerous debates that it generates. The author is an experienced teacher of jurisprudence and excels at providing a concise, student-friendly introduction to the subject, without avoiding the subtleties of this absorbing discipline. New to this, the book’s fifth edition, are: the most recent scholarship in several areas, including the social and political developments that have influenced the law and legal theory; expanded chapters on natural law, legal positivism, rights, and theories of justice; revised discussions of virtue ethics, human and animal rights, the economic analysis of law, and feminist theories; and updated suggested further reading lists and questions at the end of each chapter.

Understanding Jurisprudence

2020 ◽  
Author(s):  
Raymond Wacks
Keyword(s):  
Environmental Protection ◽  
Judicial Review ◽  
Legal Theory ◽  
Extensive Literature ◽  
Experienced Teacher ◽  
Sixth Edition ◽  
Recent Scholarship ◽  
Starting Point ◽  
Theories Of Justice ◽  
The Subject

With a clear, engaging, and informal style, Understanding Jurisprudence is the perfect guide for students new to legal theory looking for a handy and stimulating starting point to this sometimes daunting subject. Key theories and theorists are introduced in a compact and practicable format, offering an accessible account of the central ideas without oversimplification. Further reading suggestions are included throughout, helping students to structure their research and navigate the jurisprudence’s extensive literature. Critical questions are also included in each chapter, to encourage students to think analytically about the law and legal theory, and the numerous debates that it generates. The author is an experienced teacher of jurisprudence and excels at providing a concise, student-friendly introduction to the subject, without avoiding the subtleties of this absorbing discipline. New to this, the book’s sixth edition, are: the most recent scholarship in several areas, including expanded discussions of theories of justice, globalization, and environmental protection, as well as a new section on judicial review and democracy. There are also updated suggested further reading lists and questions at the end of each chapter.

The social uses of the law at a Soweto garbage dump: Reclaiming the law and the state in the informal economy

2016 ◽  
Vol 65 (2) ◽  
pp. 222-234 ◽  
Author(s):  
Melanie Samson
Keyword(s):  
Informal Economy ◽  
Research Agenda ◽  
Legal Theory ◽  
Social World ◽  
The State ◽  
Informal Workers ◽  
The Social ◽  
Critical Legal Theory ◽  
The Law ◽  
Social Uses

The informal economy is typically understood as being outside the law. However, this article develops the concept ‘social uses of the law’ to interrogate how informal workers understand, engage and deploy the law, facilitating the development of more nuanced theorizations of both the informal economy and the law. The article explores how a legal victory over the Johannesburg Council by reclaimers of reusable and recyclable materials at the Marie Louise landfill in Soweto, South Africa shaped their subjectivities and became bound up in struggles between reclaimers at the dump. Engaging with critical legal theory, the author argues that in a social world where most people do not read, understand, or cite court rulings, the ‘social uses of the law’ can be of greater import than the actual judgement. This does not, however, render the state absent, as the assertion that the court sanctioned particular claims and rights is central to the reclaimers’ social uses of the law. Through the social uses of the law, these reclaimers force us to consider how and why the law, one of the cornerstones of state formation, cannot be separated from the informal ways it is understood and deployed. The article concludes by sketching a research agenda that can assist in developing a more relational understanding of the law and the informal economy.

scholarly journals A LÓGICA DEDUTIVA SOB A ÓTICA DA INTERPRETAÇÃO JURÍDICA E DA TEORIA DA DECISÃO

2011 ◽  
Vol 08 (1) ◽  
pp. 16-21
Author(s):  
Ana Augusta Rodrigues Westin Ebaid
Keyword(s):  
Complex System ◽  
Legal Theory ◽  
Inductive Logic ◽  
Logical Reasoning ◽  
Legal Positivism ◽  
Legal Decision ◽  
Democratic State ◽  
Deductive Method ◽  
Chaim Perelman ◽  
The Law

This paper discusses the application of deductive logical reasoning in the interpretation and legal decision, focusing on legal positivism and its base of constitution in a democratic state. The study aims to examine the contours of legal positivism from the perspective of one of its biggest critics: the philosopher Chaïm Perelman. The investigation begins with the study of deductive and inductive logic, examining its relationship with the law, to achieve a legal theory that reaches the philosophical and political ideals of a democratic state. The research indicates that despite the logical deductive method to develop as an important tool in the legal world, it is not enough to express adequately a complex system that involves, above all, values whose goal is to achieve the realization of justice.

scholarly journals MENGGUGAT RELASI FILSAFAT POSITIVISME DENGAN AJARAN HUKUM DOKTRINAL

2012 ◽  
Vol 12 (1) ◽  
Author(s):  
FXAdji Samekto
Keyword(s):  
Social Sciences ◽  
Natural Law ◽  
Natural Science ◽  
Legal Positivism ◽  
Logical Positivist ◽  
The Social ◽  
The Law

In the teaching of law, there is often "mistaken", that puts legal positivism (jurisprudence)  is identical with the philosophy of positivism. Legal positivism be identified as an instance of positivism philosophy intact. The study of legal positivism, in fact very closely related to the philosophy and teachings of the law from time to time. The effects of natural law in the scholastic era, then the era of rationalism and the influence of positivism in the philosophy of natural science is very attached to the legal positivism until today. Therefore not only the philosophy of positivism affecting the development of legal positivism. Based on that then the legal positivism in fact has a characteristic which is different from the social sciences. If the social sciences were developed based on the philosophy of positivism, the doctrinal teaching of the law is not entirely been developed based on the philosophy of positivism. Not all the logical positivist philosophy can be applied in the doctrinal law. Keywords : positivism, legal positivism, doctrinal

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.

scholarly journals Dismissal of KPK Employees from Legal Positivism and Alternative Solutions

2021 ◽  
pp. 175
Author(s):  
Dominikus Dalu Sogen ◽  
Dewa Ayu Putri Asvini ◽  
Detty Kristiana Widayat
Keyword(s):  
Human Rights ◽  
Legal Theory ◽  
Legal Positivism ◽  
Constitutional Court ◽  
Human Right ◽  
The Public ◽  
Positive Law ◽  
The People ◽  
National Human ◽  
The Law

Studying the philosophy of law means studying various schools of law. Amongst the variety of legal theories, there are adherents of legal positivism or the positive legal theory postulated by John Austin (a philosopher whose thoughts on law are outlined in a work entitled The Province of Jurisprudence Determined 1832). Are Austin's thoughts still relevant for the practice of law inthe modern era, considering that law is made for the public interest? Is it appropriate for the law to be made by authorities (superior) to bind subordinates (inferior), whereas the people are only in a position to obey the law? In a functioning democracy public participation is important in decision-making by the elected legislators. Presumably, law is not made arbitrarily or unilaterally, but it is supposed to take into account the interest of the public or the interest of the groups it is designed to address. A prominent example currently in the public spotlight isthe dismissal of 57 Corruption Eradication Commission (KPK) employees due to their stated ineligibility following their failure to pass the National Insight Test Assessment. For this matter, a judicial review (JR) has been requested from the Constitutional Court and the Supreme Court who in the meantime have published their decisions. In addition, there have been recommendations from the National Human Rights Commission (Komnas HAM) and the Indonesian Ombudsman regarding the occurrence of human rights violations and maladministration in the transfer of KPK employees to ASN. Where JR's decision by the two judicial institutions is different from what is recommended by Human Right Commission and the Indonesian Ombudsman. Here it can be seen that there are differences in the application of the law with the positive law that applies and is detrimental to the rights of KPK employees.

TROUBLE FOR LEGAL POSITIVISM

Legal Theory ◽  
2006 ◽  
Vol 12 (3) ◽  
pp. 225-263 ◽  
Author(s):  
Danny Priel
Keyword(s):  
Subject Matter ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Validity ◽  
Legal Norms ◽  
The Subject ◽  
The Law

Many contemporary legal positivists have argued that legal theory is evaluative because it requires the theorist to make judgments of importance. At the same time they argue that it is possible to know “what the law is” without resort to evaluative considerations. I distinguish between two senses of “what the law is”: in one sense it refers to legal validity, in another to the content of legal norms, and I argue that legal positivism is best understood (as indeed some legal positivists have explicitly said) as a claim about legal content. Understood this way, however, it is open to the objection that knowing the content of legal norms requires evaluative considerations for reasons similar to those offered by positivists for thinking that legal theory is requires evaluative considerations. I then distinguish between evaluative considerations in general and moral considerations and argue that because of the subject-matter of legal norms, there are good reasons for thinking that it is moral considerations, and not just any other evaluative considerations, that are required for knowing the content of legal norms.

scholarly journals A Crítica de Dworkin ao Convencionalismo e sua Relevância: Um Esquema de Crítica Conceitual / Dworkin’s Criticism of Conventionalism and Its Relevance: A Conceptual Criticism Scheme

2016 ◽  
Author(s):  
Ronaldo Porto Macedo Jr
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Accurate Description ◽  
Conceptual Scheme ◽  
Legal Practice ◽  
Ronald Dworkin ◽  
Logical Grammar ◽  
The Law ◽  
Correct Understanding

Resumo: O trabalho apresenta um esquema conceitual da crítica formulada por Dworkin ao convencionalismo jurídico e seus impactos para a correta descrição do conceito de direito e da compreensão da natureza dos nossos desacordos jurídicos. Depois de  definir os significados de convenção, convencionalismo e do convencionalismo jurídico é apresentada a sua relevância para a determinação de uma concepção positivista de direito apoiada na tese de que este de funda exclusivamente em fontes diretamente sociais. Em seguida, são apresentados casos paradigmáticos de desacordos teóricos que não são adequadamente explicados por uma teoria jurídica comprometida com o convencionalismo jurídico. Com base neles é apresentado um esquema conceitual geral e provisório para a compreensão da critica que Dworkin formula ao convencionalismo jurídico, salientando-se como ela se fundamenta numa análise da gramática lógica pressuposta em desacordos teóricos comuns em nossa prática jurídica. Por fim, o texto indica que o convencionalismo jurídico não foi capaz de responder ao desafio dworkiniano na medida em que não considerou corretamente o tipo de desacordo teórico que estava em questão em casos centrais das práticas jurídicas.Palavras-chave: Positivismo jurídico; Convencionalismo jurídico; Interpretativismo.Abstract: The essay presents a conceptual scheme of the criticism made by Ronald Dworkin to legal conventionalism and its relevance for an accurate description of the law and the correct understanding of the nature of legal disagreement. After defining the concepts of convention, conventionalism and legal conventionalism it shows its connection to a positivist conception of law based on the exclusive social grounds of law. It offers shows how some paradigmatic cases of theoretical disagreements are not adequately explained by a legal theory committed with legal conventionalism. Based on these cases the text offers a general and preliminary conceptual scheme to understand Dworkin’s criticism of legal conventionalism. Dworkin’s approach is grounded on the analysis of the logical grammar presupposed by theoretical disagreement common in ordinary legal practice. Finally the essay points to the fact that legal conventionalism failed to cope with the Dworkinian challenge since it could not rightly take in consideration the kind of theoretical disagreements that are at stake in pivotal cases of legal practice.Keywords: Legal positivism; Legal conventionalism; Interpretativism.

scholarly journals Conceptual pluralism in foreign philosophy and sociology of law: history and modernity

2020 ◽  
pp. 27-43
Author(s):  
Andrei Andreevich Kovalev
Keyword(s):  
Social Life ◽  
Legal Theory ◽  
Legal Positivism ◽  
Sociology Of Law ◽  
Administrative Practice ◽  
The Social ◽  
Legal Nature ◽  
Western Law ◽  
Sociological Approaches ◽  
Conceptual Pluralism

This article analyzes conceptual representations of the prominent foreign philosophers of law as a reality of social existence and a form of collective consciousness, which are traditionally attributed to philosophy and sociology of law. The goal of this research consists in the following: 1) assess the attitude of analytical jurisprudence towards theoretical integration of various aspects of law by analogy with the sociology of law; 2) follow the correlation between philosophical and sociological approaches towards interpretation of socio-legal meanings of modernity; 3) analyze the dependence of development of the philosophy of law, which was often searching for explanations in distinct underlying logic inherent to practice of law, on the sociology of law, which tends to comprehend  law in relation to various aspects of organization of social life (including professional legal and administrative practice). The novelty of this of this work is defined by the following aspects. The article makes an attempt of comprehensive analyze of various approaches and theories, as well as assesses feasibility of examination of questions of social and legal nature in the context of sociology of law. Attention is given to the experience of Western law, which in the author’s opinion virtually implies national state law, i.e. what British philosopher, the founder of legal positivism John Austin, called independent political societies. The article reveals the question of critical potential of sociology of law, which criticized the assumption that nature of the social is not a problem for legal theory

scholarly journals Jhon Austin's Positivism Legal Policy: Convergence of Natural Law

2021 ◽  
Vol 8 (9) ◽  
pp. 401
Author(s):  
Arief Budiono ◽  
Dewi Iriani ◽  
Nunik Hariyani ◽  
Erma Ullul Janah
Keyword(s):  
Natural Law ◽  
Legal Theory ◽  
Human Life ◽  
Ancient Greece ◽  
Legal Positivism ◽  
Legal Research ◽  
Legal Policy ◽  
The Law ◽  
State Of Power ◽  
John Austin

Legal positivism is influenced by natural law from Ancient Greece, natural law comes from God to regulate human life. Humans were created by reason by God to make rules, John Austin stated that to make a rule sourced from orders or policies in the field of law by the king or parliament as the highest authority. This influenced the thinking of Hans Klesen with a pure legal theory that complies with hierarchical rules and sanctions, Hart's legal positivism explains that law comes from morals that regulate one's behavior. This paper is in the form of legal research in literature studies in the form of books and journals that discuss positivism legal policy, which is legal research, then analyzed using the John Austin doctrine. The advantage of the influence of natural law on legal positivism according to Austin is that it divides the law into two forms, namely the law from God for humans (the divine law), the law created by God for His creatures. Laws are compiled and made by humans, which consist of: Laws that are actually positive laws (properly so called), and laws that are not actually laws (improperly so called). 2. The doctrine of legal positivism, state power must be limited and controlled by law, the state must be constructed as a state of law and not a state of power. Every citizen is considered to have the same position, law enforcers to think and act legally formalistically, by placing legal justice as the goal of law.

Sign in / Sign up

Export Citation Format

Share Document