Divine Purposiveness and its Implications in Legal Theory: The Interplay of Kalām and Uṣūl al-Fiqh

2017 ◽  
Vol 24 (3) ◽  
pp. 171-210
Author(s):  
Rami Koujah
Keyword(s):  
Legal Theory ◽  
Human Beings ◽  
Legal Rules ◽  
The Law

While jurisprudents agree that the Sharīʿa serves to benefit human beings because God is wise and merciful, they disagree as to the nature of the correlation between God’s rulings and these benefits. Does God legislate with the purpose of benefitting consumers of the law? In this essay I investigate the Ashʿarī doctrine on whether God can be said to act purposively and how this doctrine influences legal theory (uṣūl al-fiqh). I will examine Sayf al-Dīn al-Āmidī’s position on this issue in his theological writings and his work on legal theory. By focusing on one particular aspect of legal theory, I will demonstrate how the issue of purposiveness in God’s acts substantively impacts methodologies for the derivation of legal rules. I will then highlight the mechanisms al-Āmidī develops as a means of constructing a theory that maintains consistency and integrity, and compare his view to that of Fakhr al-Dīn al-Rāzī’s (d. 606/1209).


Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

Legal Rules for Recovery

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Profession ◽  
Physician Behavior ◽  
Medical Decision ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Judicial Remedy ◽  
The Law ◽  
Injured Patients

This chapter deals with the legal theory and procedural framework under which patients can obtain redress for their injuries resulting from treatment administered in the absence of informed consent. The evolution of the legal doctrine was driven by the demands of patients for redress for injuries, and more attention has been given by courts and legislatures to the questions of when and how compensation might be obtained than to providing guidance for clinicians. In some important respects, the distinction between the law as it applies to the physician engaged in medical decision making with a patient and the law as it applies to that same patient who later seeks compensation in the courts is an artificial one. Insofar as the spirit of informed consent is not embraced voluntarily by the medical profession, but is adhered to in large part to avoid the likely consequences of failure to observe the legal rules, physician behavior will be shaped not only by the rules themselves but also by the way they are enforced. If, for example, the rules governing the means of redress were complex, time-consuming, and unlikely to yield the desired compensation, few injured patients would pursue a judicial remedy. As a result, physicians would eventually realize that adverse consequences were unlikely to follow from a failure to observe the relevant rules and, except to the extent that they had accepted the ethical theory of informed consent, their adherence to the doctrine would crumble. Some critics of the present system contend that this has already happened (see Chapter 7). On the other hand, rules that make recovery easier and more certain would be likely to encourage compliance with the requirements for informed consent. Differential emphasis by the courts on particular kinds of lapses by clinicians might also shape their actions accordingly. For example, the courts’ focus on risk information has led many physicians to tailor disclosure to emphasize risks. Thus, the issues addressed in this chapter, although framed in legal terminology, are important (some would argue crucial) determinants of the ultimate impact of informed consent.

Of Wonder and Changing the World: Philip Allott’s Legal Utopianism

2018 ◽  
Vol 60 (1) ◽  
pp. 335-364
Author(s):  
Jens T. Theilen
Keyword(s):  
Legal Theory ◽  
Human Action ◽  
Law And Society ◽  
Human Beings ◽  
Open Future ◽  
Utopian Studies ◽  
The World ◽  
The Future ◽  
The Law ◽  
Utopian Thought

Utopian perspectives on law are rare – both within legal theory, which generally eschews utopianism as frivolous and unrealistic, and within utopian studies, which have argely neglected to analyse the role that law plays in utopia or on the path towards it. Philip Allott’s work, and his latest monograph ‘Eutopia’ in particular, constitutes a notable exception which is positioned at the intersection between law and utopianism, and this paper aims to explore that intersection with a view to identifying the conceptualisation of law that it implies. To tease out the utopian elements in Allott, I suggest reading ‘Eutopia’ in light of Ernst Bloch’s ‘The Principle of Hope’. Three related utopian themes can thus be identified: the orientation towards the future based on dreams, imagination, and educated hope; the defamiliarisation from the present to open up possibilities of change; and the situation of utopian thought in relation to present reality, dynamically construed, with an emphasis on the need for action by human beings to propel society towards a utopian future. I argue that this framework leads to a utopian account of law which is critical of the law as it stands, dynamically oriented towards an open future, and in the hands of human beings who have the power to shape and transform its content. The conclusion considers the implications of this analysis for the genre of text to which ‘Eutopia’ belongs: If the point is to transform law and society by way of human action, then it constitutes a utopian manifesto that aims to instigate a sense of responsibility among its readers, and thus achieve the world as it could be.

Institutionally Embodied Law: Cognitive Linguistics and the Making of International Law

2021 ◽  
pp. 72-89
Author(s):  
Jacob Livingston Slosser ◽  
Mikael Rask Madsen
Keyword(s):  
Cognitive Linguistics ◽  
Meaning Making ◽  
Power Dynamics ◽  
Human Beings ◽  
Legal Process ◽  
Legal Principles ◽  
Legal Rules ◽  
Public Hearings ◽  
The Law ◽  
Law Making

This chapter examines language’s role in the formation of legal categories. It holds that they are not just subject to whims of negotiated power dynamics but also to the dynamics of how human beings involved in the legal process operationalize underlying cognitive processes. We focus on the process of law-making by cognitive category-making. We promote a methodological intervention to examine the processes of meaning-making in legal principles to explore the politics of legal practice in action as, in part, an embodied cognitive process. Although public hearings, consultation, and deliberation are all part of the legal process, we focus on how law is performed as a written exercise with the goal of understanding the law through its use of linguistic choices. The result is an exploration of how language displays the cognitive underpinnings of legal category making and the development of legal institutions, legal rules and, the law itself.

Imperial Visions and Mundane Practices

1987 ◽  
Vol 46 (3) ◽  
pp. 465-488 ◽  
Author(s):  
N. E. Simmonds
Keyword(s):  
Legal Theory ◽  
Ronald Dworkin ◽  
Legal Rules ◽  
Sound Theory ◽  
The Law ◽  
Theory Of Law ◽  
Correct Application ◽  
Proper Interpretation ◽  
Hard Cases

In his first book, Taking Rights Seriously, Ronald Dworkin opposed the view that law is a body of publicly ascertainable rules identifiable by some basic master test or rule of recognition. In place of that account he offered a rival vision. Law was portrayed as inherently controversial in content. Discovering the law on this or that subject is not, Dworkin argued, simply a matter of looking up the established rules: it is a matter of constructing a justificatory theory beneath which the established legal rules can be subsumed. In his latest book, Law's Empire, that account of the nature of law has been backed up by an analogous account of the nature of legal theory. A sound theory of law, we are told, is not one that unearths semantic rules governing the use of the word ‘law’. Disputes between rival legal theories do not hinge on the discovery of such deep semantic criteria, any more than disputes about the content of the law in hard cases hinge on the correct application of a rule of recognition. Disputes of both kinds are interpretive disputes: they concern the proper interpretation of legal practices.

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

scholarly journals A Comparative Viewpoint on Illegal Contracts: In Favor of Flexibility and Proportionality

Global Jurist ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Rossella Esther Cerchia
Keyword(s):  
Dense Network ◽  
Legal Rules ◽  
The Law ◽  
Laws And Regulations

Abstract In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.

scholarly journals CASTING THE LIGHT OF THE THEORY OF OPPOSITION ONTO HOHFELD'S FUNDAMENTAL LEGAL CONCEPTS

Legal Theory ◽  
2021 ◽  
pp. 1-34
Author(s):  
João Alberto de Oliveira Lima ◽  
Cristine Griffo ◽  
João Paulo A. Almeida ◽  
Giancarlo Guizzardi ◽  
Marcio Iorio Aranha
Keyword(s):  
Conceptual Framework ◽  
Legal Theory ◽  
Analytical Framework ◽  
The Core ◽  
Recent Developments ◽  
The Law ◽  
Opposition Theory ◽  
Legal Concepts ◽  
Number Of Authors

Abstract At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

Kant on the Ground of Human Dignity

2021 ◽  
pp. 1-19
Author(s):  
Apaar Kumar
Keyword(s):  
Human Dignity ◽  
Reciprocal Relationship ◽  
Human Beings ◽  
Moral Law ◽  
Human Constitution ◽  
The Law

Abstract Kant interpreters have contrasting views on what Kant takes to be the basis for human dignity. Several commentators have argued that human dignity can be traced back to some feature of human beings. Others contend that humans in themselves lack dignity, but dignity can be attributed to them because the moral law demands respect for humanity. I argue, alternatively, that human dignity in Kant’s system can be seen to be grounded in the reciprocal relationship between the dignity of the moral law and the dignity inherent in the human constitution. The latter includes the dignity of personhood, construed as rational inner purposiveness, and the dignity of giving oneself the law and striving to follow it.

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