David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
In Tadeusz Biernat & Marek Zirk-Sadowski (eds.), Politics of Law and Legal Policy: Between Modern and Post-Modern Jurisprudence. Wolters Kluwer Polska. 292--315 (2008)
In newly emerging democracies, succeeding governments have numerous policy tasks for the purpose of developing the free market and the democratic process. In such legal systems, policy-oriented views of law, which regard law as a policy tool for diminishing public problems, seem descriptively pertinent and prescriptively helpful. This is also the case in mature democratic legal systems, where the public problems faced by governments become more and more complex. Policy-directional views of law do not necessarily imply that law is a value-neutral means that can serve any possible political ends. It is widely recognized among legal theorists and practitioners, with notable exceptions represented by exclusive legal positivists, that the law involves moral values, including justice and liberty. In the present essay, I focus on one version of policy-oriented views of law that is based on the fundamental ideals of justice and interest. By sketching out this version, I attempt to shed new light on some concepts and issues in jurisprudence. To begin, I articulate the concept of justice and identify the difficulties that interest-based conceptions of justice encounter, by referring to some classical works. I also make a distinction between different conceptions of interest. Next, the two basic concepts in law — rights and liberty — are explained in terms of justice and interest. Efficiency, which has been largely neglected in traditional jurisprudence notwithstanding its practical significance, is also briefly discussed. Then, I turn to exploring the implications that the law-as-policy theory grounded on justice and interest might have for the foundations of two legal domains: criminal law and laws governing political participation. Some allegations and objections against this theory are described, and responses to them are given. The essay concludes by noting the questions that remain open in this theory.
|Keywords||criminal law efficiency liberty political participation rights|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Matthew H. Kramer (ed.) (2008). The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy. Oxford University Press.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Robert S. Summers (2006). Form and Function in a Legal System: A General Study. Cambridge University Press.
Ellen Frankel, Fred Dycus Miller & Jeffrey Paul (eds.) (2000). Natural Law and Modern Moral Philosophy. Cambridge University Press.
David Lyons (1971/1993). Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility. Cambridge University Press.
Alan W. Norrie (2005). Law and the Beautiful Soul. Published in the United States by Cavendish Pub..
Garrett Barden (2010). Law and Justice in Community. Oxford University Press.
Baudouin Dupret (2011). Adjudication in Action: An Ethnomethodology of Law, Morality and Justice. Ashgate.
Hans Kelsen (1957/2000). What is Justice?: Justice, Law, and Politics in the Mirror of Science: Collected Essays. Lawbook Exchange.
Austin Sarat, Lawrence Douglas & Martha Merrill Umphrey (eds.) (2005). The Limits of Law. Stanford University Press.
Pavlos Eleftheriadis (2008). Legal Rights. Oxford University Press.
René Foqué (2008). Criminal Justice in a Democracy: Towards a Relational Conception of Criminal Law and Punishment. [REVIEW] Criminal Law and Philosophy 2 (3):207-227.
Ellen Frankel Paul, Fred Dycus Miller & Jeffrey Paul (eds.) (2006). Justice and Global Politics. Cambridge University Press.
Added to index2011-11-30
Total downloads16 ( #146,256 of 1,696,514 )
Recent downloads (6 months)2 ( #246,076 of 1,696,514 )
How can I increase my downloads?