Law’s Claim of Legitimate Authority

2019 ◽  
pp. 121-148
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legitimate Authority ◽  
Conceptual Truth ◽  
Law And Morality ◽  
Conceptual Relationships ◽  
Normative Content

This chapter determines whether the Authority Thesis is true. The Authority Thesis is based on the idea of a conceptual truth that law claims legitimate authority and hence that it is a conceptual truth that law is capable of being legitimate. This is the foundation of the Incorporation Thesis. Insofar as the notion of legitimate authority is a concept with morally normative content, it is important to understand whether it is part of law’s nature that it claims legitimate authority. To this end, the chapter attempts to determine whether the arguments against the Incorporation Thesis succeed, as well as to facilitate a deeper understanding of the conceptual relationships between law and morality.

Relationships Between Law and Morality

2019 ◽  
pp. 5-28
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legal System ◽  
Conceptual Truth ◽  
Legal Validity ◽  
Law And Morality

This chapter distinguishes three types of inquiry about law. It articulates the two conceptual views about morality and the nature of law that comprise the focus of this volume. First, the chapter explains positivist and anti-positivist views with respect to whether it is a conceptual truth that the criteria of legal validity include moral constraints on the content of law. It then turns to the dispute between inclusive and exclusive positivists with respect to whether it is conceptually possible for a legal system to have content-based moral criteria of validity. Finally, this chapter argues that the claim that conceptual jurisprudence should not be done is either unclear or false.

Morality and the Nature of Law

2019 ◽  
Author(s):  
Kenneth Einar Himma
Keyword(s):  
Legal System ◽  
Thought Experiment ◽  
The United States ◽  
Necessary Condition ◽  
Moral Norms ◽  
Legal Validity ◽  
Law And Morality ◽  
Conceptual Relationships ◽  
Conceptual Relationship ◽  
Conceptual Possibility

This book is concerned with explicating the conceptual relationships between law and morality. In particular, it explores the conceptual relationship between morality and the criteria that determine what counts as law in a given society (i.e. the criteria of legal validity). Is it a necessary condition for the existence of a legal system that it includes moral criteria of legal validity? Is it even possible for a legal system to have moral criteria of legal validity? The book considers the views of natural law theorists ranging from Blackstone to Dworkin and rejects them, arguing that it is not conceptually necessary that the criteria of legal validity include moral norms. Further, it rejects the exclusive positivist view, arguing instead that it is conceptually possible for the criteria of validity to include moral norms. In the process of considering such questions, this book considers Joseph Raz’s views concerning the nature of authority and Scott Shapiro’s views about the guidance function of law, which have been thought to repudiate the conceptual possibility of moral criteria of legal validity. The book, then, articulates a thought experiment that shows that it is possible for a legal system to have such criteria and concludes with a chapter that argues that any legal system, like that of the United States, which affords final authority over the content of the law to judges who are fallible with respect to the requirements of morality is a legal system with purely source-based criteria of validity.

Islamic Law and Society

1990 ◽  
Vol 7 (2) ◽  
pp. 177-191
Author(s):  
Louay M. Safi
Keyword(s):  
Composite System ◽  
Islamic Law ◽  
Legal Theory ◽  
Fifth Century ◽  
Muslim Community ◽  
Social Growth ◽  
The Social ◽  
Collective Experience ◽  
Law And Morality ◽  
The Impact

Shari'ah (Islamic law) has been the dominant moral and legal code ofMuslim societies for the gnxter part of their history. During the early centuriesof Islam, Shari'ah hcilitated the social growth and develojment of the Muslims,growth that culminaa in the establishment of a vast emph and an outstandmgcivilization. By the close of the fifth century of Islam, however, Shari'ahbegan to lose its role as the guiding force that inspired Muslim creativityand ingenuity and that nurtured the growing spirit of the Muslim community(Ummah). Consequently, the Ummah entered a period of stagnation thatgradually gave way to intellectual decline and social decadence. Regrettably,this painful trend continues to be more or less 'part of the individualconsciousness and collective experience of Muslims.This paper attempts to trace the development of the principles of Islamicjurisprudence, and to assess the impact of Shari'ah on society. It argues thatthe law ceased to grow by the sixth century of Islam as a result of thedevelopment of classical legal theory; more specifically, law was put on hold,as it were, after the doctrine of the infallibility of ijma' (juristic consensus)was articulated. The rigid principles of classical theory, it is contended, havebeen primarily induced by the hulty epistemology employed.by sixth-centuryjurists.Shari'ah, or Islamic law, is a comprehensive system encompassing thewhole field of human experience. It is not simply a legal system, but rathera composite system of law and morality. That is, Islamic law aspires to regulateall aspects of human activities, not only those that may entail legalconsequences. Hence, all actions and relationships are evaluated in accordancewith a scale of five moral standards.According to Shari'ah, an act may be classified as obligatory (wajib),recommended (mandub), permissible (mubah), reprehensible (makruh), orprohibited (haram). These five categories reflect the varying levels of moral ...

Religious Zionism, Jewish Law, and the Morality of War

2017 ◽  
Author(s):  
Robert Eisen
Keyword(s):  
International Law ◽  
Legitimate Authority ◽  
Jewish Law ◽  
Jewish State ◽  
Moral Issues ◽  
Law And Ethics ◽  
Present Book ◽  
History Of ◽  
State Of Israel ◽  
Morality Of War

When the state of Israel was established in 1948, it was immediately thrust into war, and rabbis in the religious Zionist community were challenged with constructing a body of Jewish law to deal with this turn of events. Laws had to be “constructed” here because Jewish law had developed mostly during prior centuries when Jews had no state or army, and therefore it contained little material on war. The rabbis in the religious Zionist camp responded to this challenge by creating a substantial corpus of laws on war, and they did so with remarkable ingenuity and creativity. The work of these rabbis represents a fascinating chapter in the history of Jewish law and ethics, but it has attracted relatively little attention from academic scholars. The purpose of the present book is therefore to bring some of their work to light. It examines how five of the leading rabbis in the religious Zionist community dealt with key moral issues in the waging of war. Chapters are devoted to R. Abraham Isaac Kook, R. Isaac Halevi Herzog, R. Eliezer Waldenberg, R. Sha’ul Yisraeli, and R. Shlomo Goren. The moral issues examined include the question of who is a legitimate authority for initiating a war, why Jews in a modern Jewish state can be drafted to fight on its behalf, and whether the killing of enemy civilians is justified. Other issues examined include how the laws of war as formulated by religious Zionist rabbis compares to those of international law.

Legitimacy, Democracy, and Justice

2017 ◽  
Author(s):  
Rainer Forst
Keyword(s):  
Basic Concepts ◽  
The Relationship ◽  
Normative Content ◽  
Normative Validity

This chapter attempts to provide a reflexive answer to the question of the relationship between the three basic concepts of political normativity. These concepts are: legitimacy, democracy, and justice. It is commonly assumed that these three concepts are arranged in order of increasing normative content: the concept of legitimacy is thought to involve less extensive normative investments than that of democracy, whereas justice, by contrast, is not only regarded as the highest political good but also seems to be in rivalry with the concept of democracy and to go beyond legitimacy. In addition, “reflexivity” here is taken as the ability to ascertain the ultimate justifying reasons for the claim to normative validity. This is not only a theoretical but also a practical virtue, since practices and institutions can exhibit reflexivity insofar as they adopt a critical stance on their justifiability.

On the Legitimacy of Expectations

2018 ◽  
Author(s):  
Alexander Brown
Keyword(s):  
Basic Structure ◽  
Legitimate Authority ◽  
Complex Theory ◽  
Role Responsibility ◽  
Administrative Agencies ◽  
Substantive Justice ◽  
The Subject ◽  
The Law

Section I identifies the weaknesses in existing accounts which locate the legitimacy of expectations in underpinning laws and legal entitlements (the Law-Based Account), in the substantive justice of expectations and/or the justice of the basic structure which forms the background to expectations (the Justice-Based Account), or in the legitimacy of the governing agencies and political authorities whose acts and omissions are both the cause and the subject of expectations (the Legitimate Authority-Based Account). Section II introduces a rival account, the Responsibility-Based Account, according to which the legitimacy of expectations depends on the responsibility of governmental administrative agencies for bringing about agent’s expectations, allied to those agencies already having been given or having assumed a role responsibility for making binding decisions affecting the important interests of agents. Finally, Section III expounds in more detail the complex theory of responsibility that undergirds the Responsibility-Based Account.

‘Chinese’ hegemony from a Korean shi perspective: aretocracy in the early modern East Asia

2020 ◽  
Author(s):  
Inho Choi
Keyword(s):  
Early Modern ◽  
East Asia ◽  
Global Governance ◽  
World Order ◽  
Legitimate Authority ◽  
Normative Influence ◽  
Global Order ◽  
Modern Chinese ◽  
Chinese State

Abstract The study of pre-modern Chinese hegemony is crucial for both theorizing hegemony and envisioning a new global order. I argue the pre-modern Chinese hegemony was a reciprocal rule of virtue, or aretocracy, driven by the transnational sociocultural elites shi. In contrast to the prevailing models of Chinese hegemony, the Early Modern East Asia was not dominated by the unilateral normative influence of the Chinese state. The Chinese and non-Chinese shi as non-statist sociocultural elites co-produced, through their shared civilizational heritage, a hegemonic order in which they had to show excellence in civil virtues to wield legitimate authority. In particular, the Ming and Chosŏn shi developed a tradition of envoy poetry exchanges as a medium for co-constructing Chinese hegemony as aretocracy. The remarkable role of excellent ethos for world order making in Early Modern East Asia compels us to re-imagine how we conduct our global governance.

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