Online research in philosophy

Legal Realism Regained presents a comparison between the legal realists, a group of pragmatic legal theorists from the 1920s and 1930s, and critical legal studies, a movement of postmodern legal theory during the end of the twentieth century. The book argues for a return to legal realism and the classical pragmatism of John Dewey and William James and for a rejection of the postmodern critique of critical legal studies. It discusses the two movements with respect to three topics: their view of history, their view of social science, and their view of language. Rejecting the claim that critical legal studies can be seen as the heir of legal realism, Legal Realism Regained argues that, with respect to each of these three topics, the realists still present a stronger argument than their more radical descendants.

Of all the concepts in use in the legal discourse, "legal positivism" is certainly one of the most polysemous. This is why one currently runs the risk of being misunderstood when making use of it. In particular, there is a sharp distinction between how legal theorists use the concept and how it is most often used by other legal scholars and legal practicioners. This paper attempts to succinctly present a typology of the different uses of the concept in order to facilitate more fruitful discussions. We have classified the different uses of the concept in three broad categories: (1) legal positivism as a methodological approach to the study of law; (2) legal positivism as a theory of law; and (3) legal positivism as an ideology. Each category is further subdivided so as to highlight different currents in the use of the concept within each category.

This paper originates in the statement of the human dignity principle's (HDP) growing importance in many legal orders. It first examines whether many legal orders' interest for the HDP may be linked to its intrinsic (symbolic/axiological) or extrinsic (usefulness in terms of litigation) qualities. Since the conclusions of this examination do not prove totally convincing - or at least not to the degree that one would expect for such a foundational principle as the HDP, - the argument looks in another direction: that of scholarly promotion. Indeed, a research conducted on French material provides with firm bases for suggesting that one of the striving forces of the recent legal infatuation with the HDP has to do with the fact that it has been seized by critical trends of legal scholarship as a favorable occasion for promoting the resurgence of theoretically naturalist representations of law.

This paper examines the received review of legal reasoning. This received view is articulated as the rule of law as it applies to judicial reasoning. The rule of judge-made law means that legal reasoning is rule-based. Problematically, judicial reasoning employs tools outside established legal rules and, furthermore, these tools depend on values that lack rational justification. The received view of legal reasoning therefore seems wrong. A number of legal theorists take the rejection of legal rationalism as proof that law is not a rational enterprise. I argue, however, that merely because legal rationalism is a wrong theory of jurisprudence does not suggest that law is not a rational enterprise. Notwithstanding this argument, if the received view of legal reasoning cannot sufficiently account for its own legitimacy, then the rule of law seems threatened. If the rule of law is something we take as important and meaningful, a better theory of the legitimacy of legal reasoning is needed.

This paper attempts to clarify some of the logical and conceptual issues in the philosophical dispute about law that has pitted the legal positivists against the adherents of natural law. The first part looks at the basic concepts that are relevant to that discussion and at the methodological implications of studying law either as an order of natural persons (natural law) or as a system of rules or an order of rule-defined artificial persons (legal order). Thus, we find that the material and formal objects of natural law studies and legal science are different, and only touch one another because of the contingent fact that most of the positions in the legal orders studied by positivists are occupied by natural persons. Consequently, from both the logical and the methodological points of view, natural law studies and legal studies are not rivals. The two can exist side by side and have done so for centuries. One question that emerges from analysis in the first part is why positivists have embraced the study of legal orders while heaping nothing but scorn on the study of natural law. Their attitude suggests hatred and contempt rather than a mere difference of intellectual interests. Could it be that the positivists’ attitude has little to do with logic and methodology and much with ideological issues involving fundamental values? In the second part, we look for an answer to this question in a comparison of the two major and radically opposed religious worldviews that have made their mark on Western intellectual history, the Judaeo-Christian tradition and the Gnostic tradition.

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain.

How can legal orders coexist? Contemporary lawyers and philosophers frequently accept that a legal system operates under its own terms and is shaped by its own participants. Any problems posed by the plurality of legal orders in the world are to be dealt with by each legal order separately. So persons that are caught in transnational disputes because they are subject to two or more jurisdictions, have recourse to private international law, which is always part of domestic law, i.e. the law where the case happens to arise. But this analysis does not capture international law. This is, or appears to be, a distinct legal order that is certainly not the law of a distinct nation or a people but aspires to cover the whole of the world and – perhaps surprisingly – does seem to meet many of the ordinary criteria of a legal order. This review essay discusses two recent attempts at accommodating international law, Regulating Jurisdictional Relations Between National and International Courts, by Yuval Shany and A Theory of Interpretation of the European Convention of Human Rights, by George Letsas. In their own ways both books outline a ‘substantive’ theory of international law, which is to be welcomed.

This paper argues that no legal order is possible unless it is bounded in space, time, membership and content, ie that boundaries are an intrinsic feature of the concept of law. In particular, while the organisation of the inside/outside distinction in terms of domestic and foreign state orders is certainly contingent, not so the distinction between inside/outside in terms of the contrast between a space deemed to be a collective's own space and strange places, which is constitutive for any possible legal order. The constitutive role of boundaries for legal order becomes apparent in the face of a-legal behaviour, ie behaviour that contests the distinction between legality and illegality as drawn in the spatial, temporal, subjective and material boundaries of the legal.

Whilst having long been the object of scholarly examination, the relationship between the European legal order and the international legal order has recently attracted renewed attention following the problems caused by the implementation by EU Member States of the measures adopted within the framework of the UN system of collective security. Within that context, two different discourses have permeated through the case-law of the European Courts and the legal scholarship about the articulation of the international legal order and the European legal order. On the one hand, various scholars and judges have endorsed the idea that the European legal order is an autonomous constitutional order resembling a municipal legal order (European constitutionalism). On the other hand, it has been argued that the European legal order is a legal order of international law and is embedded into the international legal order whose fundamental values and principles it must promote and enforce (international constitutionalism). It is the aim of this paper to, firstly, decipher the diverging features underlying these different understandings of the relationship between the European legal order and the international legal order and, secondly, offer a critical appraisal of their limits in the light of the abiding separation between existing legal orders.