scholarly journals John Dewey's conception of application of law in its philosophical and social context

2008 ◽  
Vol 19 (2) ◽  
pp. 221-249
Author(s):  
Bojan Spaic
Keyword(s):  
Intellectual History ◽  
Legal Theory ◽  
Cultural Background ◽  
Legal Philosophy ◽  
Critical Approach ◽  
Legal Process ◽  
Application Of Law ◽  
Philosophical Standpoint ◽  
American Society ◽  
Long Course

John Dewey, one of the most important thinkers of pragmatism, elaborated a specific conception of law partially and gradually in the long course of his intellectual career. This part of his broader philosophical outlook is analyzed here through one of its most important segments - application of law - and interpreted in its historical, social and cultural background. The first part of the article concentrates on the 'objective' (cultural, social and historical) reasons for giving emphasis to the application of law in his legal philosophy. This domination of the application of law in his legal thought is derived from the needs of a rapidly changing structure of the American society in the first half of the XX century, and theoretically has its place in an all around phenomenon in American intellectual history in general that Morton White terms antiformalism. The second part of the article analyses his legal conceptions and their connection with the general philosophical position of this pragmatist. Dewey formed his conception of application of law as an integral part of his broader philosophical standpoint, and especially on the basis of his radical reinterpretation of logic and truth. Since his understanding of the legal process has roots in his experimentalist conception of logic that encompasses the apprehension of the process of experimentation as the only warrant for the validity of propositions (that the 'truth' of a proposition is built in the process of its verification), he regards application as conditio sine qua non of the legality of norms in general. This leads us to the last part of the article that scathes possible lines of critical approach to Dewey's work in this field. The view that the legality of norms is derived from their application is in legal theory often regarded as sociologism, inasmuch as it disregards the normative aspects of the legal process and emphasizes the social ones to the point of making it void of the normative aspects in the totality of the process itself. The proper understanding of possible lines of criticism of Dewey's standpoints in legal philosophy guides us back again to confront his conceptions with their cultural background, with which the article begins.

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

scholarly journals General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification

2013 ◽  
Vol 2 (1) ◽  
Author(s):  
Constanze Semmelmann
Keyword(s):  
Natural Law ◽  
General Principle ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Philosophy ◽  
Eu Law ◽  
Conceptual Clarification

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology  towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

Ijma‘

2017 ◽  
pp. 270-298
Author(s):  
Mairaj Syed
Keyword(s):  
Legal Theory ◽  
Early Period ◽  
Phenomenological Approach ◽  
Social Needs ◽  
Muslim Community ◽  
Critical Approach ◽  
Future Studies ◽  
Islamic Legal Theory ◽  
The Social ◽  
Islamic Thought

This article surveys the three approaches—source-critical, phenomenological, and hermeneutical-theological—that prevail in the historiography of consensus in early, classical, and modern Islamic legal thought. The source-critical approach dominates the historiography of the early period. Scholars using this approach question the narrative found in classical Islamic legal theory: that specific verses of the Qur’an or Hadith of Muhammad establish consensus as a source of law. They believe instead that consensus emerged gradually, in response to the social needs of the Muslim community. Scholars using the phenomenological approach seek to define the doctrine of consensus in classical Islamic legal theory whilst scholars using the hermeneutical-theological approach view consensus as a powerful argument in issues of Islamic thought today. These approaches are not mutually exclusive and scholars often combine them. The article ends with identification of the areas for growth in future studies of consensus.

On hating and despising legal philosophy

2021 ◽  
Vol 46 (1) ◽  
pp. 29-50
Author(s):  
Jesse Wall
Keyword(s):  
Subject Matter ◽  
Legal Theory ◽  
Critical Distance ◽  
Legal Philosophy ◽  
Philosophical Practice ◽  
Current Form ◽  
Philosophical Inquiry ◽  
Cry For Help ◽  
The Subject ◽  
Legal Theorist

This article is a cry for help. It is a search for some possible view of legal philosophy that does not render it either intrinsically useless or useless in its current form. In this article I focus on two methodological hallmarks of contemporary anglophone legal philosophy. The first is the Archimedean way in which the legal theorist places a critical distance between him- or herself and the subject matter of the philosophical inquiry. The second is the introverted way in which the accuracy of any given legal theory is confined to the theorist’s own puzzles, concerns, controversies, and preoccupations. Whilst I consider those who have turned against these methodological commitments and called for an anti-Archimedean or extroverted approach to legal theory, I explain how those who accept both commitments adopt a very modest view of the helpfulness of legal philosophy. I then consider whether, contrary to the modest view, if we accept both commitments, then whatever is true in legal philosophy will always be trivially true, irrelevant, or inconsequential, for any non-philosophical practice or non-philosophical inquiry about the law. The value of this article, I hope, lies in its refutation.

scholarly journals The Idea of Effective International Law: Continuing the Discussion

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 91-92 ◽  
Author(s):  
Vijay Padmanabhan
Keyword(s):  
International Law ◽  
Annual Meeting ◽  
Interest Group ◽  
Legal Theory ◽  
Panel Discussion ◽  
Legal Norms ◽  
Empirical Question ◽  
Biennial Conference ◽  
American Society

The joint 108th American Society of International Law (ASIL) Annual Meeting and 76th International Law Association (ILA) Biennial Conference was organized under the theme “The Effectiveness of International Law.” In conjunction with this theme, the ASIL Legal Theory Interest Group hosted a panel discussion exploring the theoretical dimensions of the concept of “effectiveness” as understood in international law. Panelists discussed three related questions: (1)Is the effectiveness of international law an empirical question measured through evaluating compliance with international legal norms?(2)What conceptions of effectiveness might exist beyond compliance? Could such conceptions be captured in theoretical or moral terms?(3)Why is international law concerned with effectiveness at all?

scholarly journals BRIDGING THE GAPS : A PARADIGMATIC INSIGHT INTO PHILOSOPHY OF LAW

2016 ◽  
Vol 1 (1) ◽  
pp. 1 ◽  
Author(s):  
Erlyn Indarti
Keyword(s):  
Legal Theory ◽  
Building Blocks ◽  
Legal Philosophy ◽  
Philosophy Of Law ◽  
Legal Science ◽  
Insight Into

Paradigm represents a worldview that defines, for its holder, the nature of theworld, the individual's place in it, and the range of possible relationships to thatworld and its parts. It comprises of four main elements, i.e. ontology, epistemology,methodology, and methods. Within the discipline of law, there seem to be two setsof gaps separating philosophy of law's building blocks that dissociate, first, legalpractice from legal theory and, second, legal science from legal philosophy. It isthe purpose of this article, with the help of paradigmatic insight, to bridge thosegaps.Keywords: law, philosophy of law, paradigm, paradigmatic study of law

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