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.

International Law and Colombian Constitutionalism: A Note on Monism

1942 ◽  
Vol 36 (4) ◽  
pp. 614-620
Author(s):  
William Marion Gibson
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Subject Matter ◽  
The Other ◽  
Legal Philosophy ◽  
State Practice ◽  
The Subject ◽  
National Constitution ◽  
Relationship Of ◽  
The Relationship

In explaining the nature of international law, each of the two major schools of thought draws upon legal philosophy and practice for evidence in support of its interpretation. It is not the purpose of this note to offer any conclusions or proofs as to the validity of the reasoning of one or the other of the two schools. It would require more than the subject-matter here considered to prove the “Monist” position, or to detract from that of the “Dualist.” However, inasmuch as state practice is one of the guides to the resolution of the debate on the nature of international law, it is hoped that an explanation of the attitude of the Colombian Supreme Court concerning the relationship of pacta to the national constitution and legislation of that state may merit mention.

The Concept of Man as Presupposed by the Historical Studies

1970 ◽  
Vol 4 ◽  
pp. 14-31
Author(s):  
P. L. Gardiner
Keyword(s):  
Subject Matter ◽  
Historical Thinking ◽  
Philosophy Of History ◽  
General Context ◽  
Human Beings ◽  
Historical Knowledge ◽  
Philosophical Inquiry ◽  
The Subject ◽  
Historical Thought

I should like to begin by removing a misconception to which the title of this lecture may possibly give rise. My concern is not with general propositions regarding certain fairly well-attested human characteristics of the kind to which historians may, from time to time, advert in the course of their work or to which they may appeal in support of the account provided of some particular event or occurrence. I am not myself an historian, and for me to make ex cathedra pronouncements on such topics as these might well seem to constitute an unjustifiable intrusion upon a field about which I am not qualified professionally to speak. My subject lies within the sphere of philosophy of history rather than of history proper; it belongs, in other words, to a branch of philosophical inquiry, and as such relates, not to empirical facts and events of the sort to which the practising historian addresses himself, but to those assumptions, categories and modes of procedure that are, or are believed to be, intrinsic to historical thought and discourse. In this general context I wish to discuss two approaches to the problem of elucidating the character of historical knowledge and explanation. Both of the approaches I have in mind have achieved a considerable measure of support at the present time; they have also been widely understood as offering profoundly divergent — indeed, diametrically opposed — views of what is central to the structure of historical thinking and to the type of activity upon which the historian is essentially engaged. It has on occasions been suggested that what — amongst other things — divides adherents to the views in question is the fact that they are committed to radically different conceptions of the subject-matter of the historical studies; that is to say, of human beings and their activities. In the light of this fundamental disagreement, it is argued, many of the more intractable controversies that have arisen concerning the concepts and interpretative schemes in terms of which it is possible or legitimate to treat the human past become readily intelligible. In what follows I want to examine this claim. First, however, let me give a brief, and necessarily somewhat crude, outline of the two positions I have referred to, starting with one that is often described as ‘positivist’.

scholarly journals Dennis Patterson on Wittgenstein

2021 ◽  
Vol 6 (2) ◽  
pp. 99-106
Author(s):  
V. V. Ogleznev ◽  
Keyword(s):  
Philosophy Of Language ◽  
Legal Theory ◽  
Full Scale ◽  
Legal Philosophy ◽  
Legal Interpretation ◽  
Rule Following ◽  
Philosophical Investigations ◽  
Special Approach ◽  
Legal Theorist

Dennis Patterson, modern American legal theorist, is one of the active supporters of the importance and significance of later Wittgenstein’s ideas for resolving legal philosophy problems, including legal indeterminacy problem. On the basis of Wittgenstein’s ideas about rule-following and acting in accordance with rule, he developed his own special approach to law and legal interpretation. Although there are some doubts and possible objections that he understood and interpreted «Philosophical Investigations» correctly, it should be recognized that Patterson made a full-scale (and sometimes very convincing) attempt to explicate Wittgenstein’s thoughts in a quite different context, namely, in the context of legal theory. His treatment of wittgensteinian philosophy of language continues to be interesting and sound, despite the criticisms that have been made against his approach. It is in fact very hard to find among modern legal philosophers or theorists someone who could interpret Wittgenstein in a more sophisticated way than Patterson has done

Foucault and the Incompletion of Law

2008 ◽  
Vol 21 (3) ◽  
pp. 747-763 ◽  
Author(s):  
BEN GOLDER
Keyword(s):  
Michel Foucault ◽  
Subject Matter ◽  
Review Essay ◽  
Legal Theory ◽  
The Subject ◽  
The Law

In a late interview given to the French newspaper Le Monde, Michel Foucault discussed his dreams for a different style of criticism. ‘I can't help but dream about a kind of criticism’, remarked Foucault, in which one would ‘not try to judge, but to bring an oeuvre, a book, a sentence, an idea to life; it would light fires, watch the grass grow, listen to the wind, and catch the sea-foam in the breeze and scatter it.’ This somewhat wistful, poetic thought resonates with more familiar Foucauldian notions regarding the use of theory as a ‘toolkit’ or ‘toolbox’. Common to both these tropes – critique as affirmation and theory as functional – is the desire for thought to be put to work rather than put on trial, for sentences to be brought to life rather than delivered. And yet this presents the would-be Foucauldian book reviewer – and more so where the venue is the impeccably juridical one of the law journal – with a series of alluring problems. How might one elaborate such a Foucauldian critique in a context where one is expressly called upon to judge? What would such a non-judgmental Foucauldian critique look like? Are juridical practices of critique readily susceptible to Foucauldian appropriation or subversion? This set of related questions is emblematic of a wider concern of mine which forms the subject matter of this review essay, namely the place of Foucault (if indeed he has one) in legal theory. How does Foucault, that fabled figure of postmodern antinomianism who supposedly announced the demise and ‘expulsion’ of modern law, relate to legal theory? What might it mean to bring Foucault's unruly poststructuralism ‘into law’? And with what possible effects?

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.

The nature of legal reasoning: a brief reply to Dr Wilson

Legal Studies ◽  
1982 ◽  
Vol 2 (3) ◽  
pp. 286-290 ◽  
Author(s):  
Neil MacCormick
Keyword(s):  
Subject Matter ◽  
Propositional Logic ◽  
Legal Theory ◽  
Legal Reasoning ◽  
Point Of View ◽  
Law Students ◽  
Legal Argument ◽  
Symbolic Forms ◽  
The Subject

Both Dr Wilson and Dr Patricia White in another review have made sound and telling criticisms of my efforts in Chapter 2 of Legal Reasoning and Legal Theory at translating legal argument into the technical forms of logic. At the time of writing the book, I was apprehensive about the likely resistance at least of lawyers and law-students to any excessive resort to technicalities of symbolism; it therefore seemed wise to simplify matters by ignoring differenees between propositional logic and the logic of predicates and of relations, thc latter being at least ostensibly the more complex and difficult, albeit more rigorously fitted to the subject matter. I hoped that my perhaps unduly cryptic footnote 5 on page 28 (noted by Dr Wilson at her footnote 29) was a sufficient acknowledgment of the technical difficulties which I was thus sweeping under the carpet. Like Dr White, but unlike Dr Wilson, I took the view that my main point about the deductive character of the arguments I had in view was unaffected by the technical infelicity from a logician's point of view of my resort to the symbolic forms of propositional logic.

The Province of Jurisprudence Contested

2010 ◽  
Vol 23 (2) ◽  
pp. 515-535 ◽  
Author(s):  
Andrew Halpin
Keyword(s):  
Subject Matter ◽  
Legal Theory ◽  
Recent Book ◽  
The People ◽  
Core Feature ◽  
The Subject ◽  
The Law ◽  
Split Field ◽  
The Relationship ◽  
Field Of Inquiry

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, is regarded as presenting the opportunity for considering what is involved in seeking to establish the province of jurisprudence as a distinctive field of inquiry. The scale of Hutchinson’s ambition matches John Austin’s original efforts to determine the Province of Jurisprudence, but seeks to replace an analytical approach to jurisprudence he associates with Austin by a theoretical approach committed to advancing “strong” democracy. This provokes an initial reflection on the nature of theoretical disageement, and in particular disagreement which goes beyond trivial theoretical contestability so as to contest the nature of the subject matter that is being investigated by establishing an appropriate field of inquiry for it. Three different techniques are introduced which are capable of demarcating the subject matter of jurisprudence through establishing a field of inquiry favouring a particular theoretical viewpoint: axiomatic disengagement, ambitious insight, and a split field of inquiry.Hutchinson’s principal concern with the democratization of law, legal theory, and the province of jurisprudence is examined in detail. The process of democratization and its anti-elitist character is traced through Hutchinson’s opposition to the aloof philosophical analysis of the universal in favour of an engagement with local and particular issues. However, the weight Hutchinson places on his conception of strong democracy, so as to provide a different understanding of the the law-power nexus and of the relationship between law and morality operating in strong democracies, is shown to be misplaced. Two related failings are pointed out. First, there is a failure to recognize competing groupings within the people, which contradict the uniform collective body Hutchinson associates with those formerly governed by elites and then constituting those liberated to exercise self-governance. Secondly, this links into Hutchinson’s exclusive preoccupation with the participatory axis of democracy – which he regards as the core feature of strong democracy, and at the same time the basis for the law-power nexus and the law-morality relationship within a strong democracy. This is revealed as an inadequate and impoverished understanding of democracy once the presence of competing groupings within the people is acknowledged. Hutchinson’s one-dimensional representation of democracy along a participatory-representational continuum is rejected for failing to recognize a distinct fiduciary-beneficiary axis, which a richer understanding of “for the people” conveys. These corrections have important consequences for a role for law that cannot be reduced solely to politics, and for a broader sweep to analytical jurisprudence than Hutchinson allows.Hutchinson’s own efforts to capture the province of jurisprudence are then assessed. These are recharacterized as seeking to establish within a split field of inquiry a theory of strong democratic law, but, in the absence of a convincing account of the nature of democracy and its relationship with law, the project is judged to be unfulfilled.

scholarly journals Relations on Ensuring the Rights and Freedoms of a Man and Citizen as a Component of the Subject Matter of Administrative Law

2020 ◽  
Vol 90 (3) ◽  
pp. 144-153
Author(s):  
А. Т. Комзюк ◽  
Є. А. Липій
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Public Administration ◽  
Subject Matter ◽  
Legal Theory ◽  
Administrative Law ◽  
International Treaties ◽  
Constitutional Principle ◽  
The Subject ◽  
Administrative Regulation

The relations arising in the activity of public administration concerning the provision of human rights and freedoms, which are recognized as a priority component of the subject matter of administrative regulation, are characterized.  It is emphasized that one of the main, conceptual, most important and at the same time the most controversial issues is still the understanding of the subject matter and system of administrative law. The tasks concerning the assertion of the rights and freedoms of citizens, in particular the completeness of the settlement of their guarantees, are analyzed.  It is established that it can be carried out in different ways and means: by utterances in declarations, statements, enshrined in the Constitution and laws; participation in the preparation and adoption of international human rights instruments, accession to relevant international treaties, etc. Regarding administrative regulation, it is an issue of consolidating human and civil rights and freedoms in the sources of administrative law and recognizing their priority. The essence of the concept of "provision" and its elements are defined, which means the recognition and settlement with due fullness of these rights and freedoms, providing a real opportunity to use them, promoting implementation (positive guarantee), protection and defense from violations, renewal if allowed and responsibility of the state for them. It is emphasized that the protection and defense of the rights of citizens in modern administrative and legal theory are rarely considered as part of the constitutional principle of their approval and provision. Moreover, the emphasis in many works is exclusively made on the so-called "service" activities of public administration, which provide the most positive promotion of the rights and freedoms of citizens. However, it is no less important to maintain proper public order and security, to counteract to various illegal manifestations that infringe on these rights and freedoms, causing some damage, sometimes quite significant. The conclusion is made about the expediency of taking into account the relations concerning the provision of human rights and freedoms and its elements, in particular protection and defense in the construction of the system of administrative law.

The Concept of Man as Presupposed by the Historical Studies

1970 ◽  
Vol 4 ◽  
pp. 14-31
Author(s):  
P. L. Gardiner
Keyword(s):  
Subject Matter ◽  
Historical Thinking ◽  
Philosophy Of History ◽  
General Context ◽  
Human Beings ◽  
Historical Knowledge ◽  
Philosophical Inquiry ◽  
The Subject ◽  
Historical Thought

I should like to begin by removing a misconception to which the title of this lecture may possibly give rise. My concern is not with general propositions regarding certain fairly well-attested human characteristics of the kind to which historians may, from time to time, advert in the course of their work or to which they may appeal in support of the account provided of some particular event or occurrence. I am not myself an historian, and for me to make ex cathedra pronouncements on such topics as these might well seem to constitute an unjustifiable intrusion upon a field about which I am not qualified professionally to speak. My subject lies within the sphere of philosophy of history rather than of history proper; it belongs, in other words, to a branch of philosophical inquiry, and as such relates, not to empirical facts and events of the sort to which the practising historian addresses himself, but to those assumptions, categories and modes of procedure that are, or are believed to be, intrinsic to historical thought and discourse. In this general context I wish to discuss two approaches to the problem of elucidating the character of historical knowledge and explanation. Both of the approaches I have in mind have achieved a considerable measure of support at the present time; they have also been widely understood as offering profoundly divergent — indeed, diametrically opposed — views of what is central to the structure of historical thinking and to the type of activity upon which the historian is essentially engaged. It has on occasions been suggested that what — amongst other things — divides adherents to the views in question is the fact that they are committed to radically different conceptions of the subject-matter of the historical studies; that is to say, of human beings and their activities. In the light of this fundamental disagreement, it is argued, many of the more intractable controversies that have arisen concerning the concepts and interpretative schemes in terms of which it is possible or legitimate to treat the human past become readily intelligible. In what follows I want to examine this claim. First, however, let me give a brief, and necessarily somewhat crude, outline of the two positions I have referred to, starting with one that is often described as ‘positivist’.

scholarly journals Fenomena Pedagang Kaki Lima dalam Sudut Pandang Kajian Filsafat Hukum dan Perlindungan Konsumen

Humaniora ◽  
2014 ◽  
Vol 5 (2) ◽  
pp. 1023
Author(s):  
Shidarta Shidarta
Keyword(s):  
Public Policy ◽  
Subject Matter ◽  
Legal Protection ◽  
Legal Philosophy ◽  
Main Concern ◽  
Street Vendor ◽  
Street Vendors ◽  
Street Vending ◽  
The Subject ◽  
Points Of View

Street vending always becomes one of main problems in many big cities like Jakarta if the existence of street vendors is perceived as a burden and never comprehensively addressed. It is the main concern raised in this article . A more comprehensive perspective can be applied by using philosophical and legal approaches . This article provides two points of view in term of the phenomena, i.e. legal philosophy and consumer [legal] protection. The first relates the subject matter to the universal legal values known as the legal objectives. The second one includes two perspectives, i.e. the proctection for consumers of street vendor’s products and that for street vendor as consumer of [legal] public policy. 

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