Interpreting the everyday -- Art interpretation : the central issues -- A theory of art interpretation : substantive claims -- A theory of art interpretation : conceptual and ontological claims -- Radical constructivism -- Moderate and historical constructivism -- Interpretation and construction in the law -- Relativism versus pluralism.
Can there be a theory of law? -- Two views of the nature of the theory of law : a partial comparison -- On the nature of law -- The problem of authority : revisiting the service conception -- About morality and the nature of law -- Incorporation by law -- Reasoning with rules -- Why interpret? -- Interpretation without retrieval -- Intention in interpretation -- Interpretation : pluralism and innovation -- On the authority and interpretation (...) of constitutions : some preliminaries -- Postema on law's autonomy and public practical reasons : a critical comment. (shrink)
Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the (...) nature of interpretation, its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy. (shrink)
... Abu Hamid al-Ghazall enumerates twenty questions upon which he contends the philosophers have formulated heretical theories against which the Muslim ...
Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.
Classical thinkers -- The consensus tradition -- Critical perspectives -- Feminism and law -- The interpretive tradition -- Postmodernism and difference -- Legal pluralism and globalisation.
The shared nature of language -- Derrida on language and meaning -- Reading the law : hermeneutics and deconstruction -- The ethics of language -- Uncertain justice.
Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.
The problem of the judge: judicial freedom of decision, its necessity and method, by F. Gény.--Judicial freedom of decision, its principles and objects, by E. Ehrlich.--Dialecticism and technicality; the need of sociological method, by J. G. Gmelin.--Equity and law, by G. Kiss.--The perils of emotionalism, by F. Berolzheimer.--Judicial interpretation of enacted law, by J. Kohler.--Courts and legislation, by R. Pound.--The operation of the judicial function in English law, by H. B. Gerland.--Codified law and case-law, by É. Lambert.--Methods of juridical (...) thinking, by K. G. Wurzel.--The problem of the legislator: methods for scientific codification, by A. Alvarez.--The legislative technic of modern civil codes, by F. Gény.--Scientific method in legislative drafting, by E. Freund. (shrink)
This book is a comprehensive analysis of the major intellectual positions in the philosophical debate on Islamic law that is occurring in contemporary Iran.
The Talmud - the Mishnah, a philosophical law code, and the Gemara, a dialectical commentary upon the Mishnah - works by translating principal modes of Western ...
Machine generated contents note: 1. Spoken, intended and problematic divorce in Hanafi Fiqh; 2. Between person and property - slavery in Qudūrī's Mukhtasar; 3. Pig, purity and permission in Mālikī slaughter; 4. Islamic and other perspectives on evil; 5. The language of love in the Qur'ān; 6. Virtue and limits in the ethics of friendship 7. Drinking and drunkenness in Ibn Rushd.
Vagueness in law can lead to indeterminacies in legal rights and obligations. This book responds to the challenges that those indeterminacies pose to theories of law and adjudication.
Why does the law spurn win-win transactions? -- Things we can't consent to, though no one knows why -- A parable -- Lessons -- The social choice connection -- Why is the law so full of loopholes? -- The irresistible wrong answer -- What is wrong with the irresistible answer? -- The voting analogy -- Turning the analogy into an identity -- Intentional fouls -- Why is the law so either/or? -- The proverbial rigidity of the law -- Line drawing (...) as a matter of life and death -- Why don't we punish all we condemn? -- The undercriminalization problem -- Multicriterial ranking and the undercriminalization problem -- Final thoughts. (shrink)
There is burgeoning interest in the field of “Islamic” bioethics within public and professional circles, and both healthcare practitioners and academic scholars deploy their respective expertise in attempts to cohere a discipline of inquiry that addresses the needs of contemporary bioethics stakeholders while using resources from within the Islamic ethico-legal tradition. This manuscript serves as an introduction to the present thematic issue dedicated to Islamic bioethics. Using the collection of papers as a guide the paper outlines several (...) critical questions that a comprehensive and cohesive Islamic bioethical theory must address: (i) What are the relationships between Islamic law (Sharīʿah), moral theology (uṣūl al-Fiqh), and Islamic bioethics? (ii) What is the relationship between an Islamic bioethics and the lived experiences of Muslims? and (iii) What is the relationship between Islamic bioethics and the state? This manuscript, and the papers in this special collection, provides insight into how Islamic bioethicists and Muslim communities are addressing some of these questions, and aims to spur further dialogue around these overaching questions as Islamic bioethics coalesces into a true field of scholarly and practical inquiry. (shrink)
Strikingly, theorizing about digital technologies has led us to recognize many habitual subjects of research as figures against fields that are also worthy of study. Communication, for example, becomes visible only against the field of silence. Silence is critically important for the construction of reality – and the social construction of reality has a complement, the also necessary contemplative construction of reality. Silence is so sensitive and fragile that an inability to achieve it, or to get rid (...) of it, or to correct the wrong kind of silence often provides early indicators of individual, group, communal, and society-wide stresses from information technologies. Indeed, we might treat difficulties with silence as miners treated canaries in coal mines, as early warning signals. The story has already been told that nightingales in London now have to sing so loudly in order to be heard above the ambient noise that the birds are in danger of breaking the noise ordinance law. Surely something has gone awry if nightingales break the law when they sing. Finding ways to protect silence as an arena of personal and social choice is a particularly poignant, evocative, and instructive ethical and policy horizon at this frontier moment for the human species. This article introduces the theory of the contemplative construction of reality, explores what the study of silence tells us about reality construction processes, and outlines a research agenda. (shrink)
Hans Kelsen is considered by many to be the foremost legal thinker of the twentieth century. During the last decade of his life he was working on what he called a general theory of norms. Published posthumously in 1979 as Allgemeine Theorie der Normen, the book is here translated for the first time into English. Kelsen develops his "pure theory of law" into a "general theory of norms", and analyzes the applicability of logic to norms to offer an original and (...) extreme position which some have called "normative irrationalism". Examining the views of over 200 philosophers and legal theorists on law, morality, and logic, and revising several of his own earlier positions, Kelsen's final work is a mandatory resource for legal and moral philosophers. (shrink)
Abstract: The discovery of DNA paternity tests has stirred a debate concerning the definition of paternity and whether the grounds for such a definition are legal or biological. According to the classical rules of Islamic law, paternity is established and negated on the basis of a valid marriage. Modern biomedical technology raises the question of whether paternity tests can be the sole basis for paternity, even independently of marriage. Although on the surface this technology seems to challenge the authority (...) of Islamic law in this area, the paper argues that classical Islamic rulings pertaining to paternity issues continue to hold higher authority even in cases of conflict with modern technology-based alternatives. Through closer analysis, the paper traces the emergence of a differentiation in the function of DNA tests between identity and paternity verification. While the former is accepted without reservation, the latter is approved only when it does not violate the rulings of Islamic law. (shrink)
The purpose of this volume is to rethink the questions posed by Derrida's writings and his unique philosophical positioning, without reference to the catch phrases that have supposedly summed up deconstruction.
The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an ...
This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.Explores enduring questionsFocusing ...
One of the ways Islamic tradition addresses questions of military ethics is through inquiries into the shari'a, indicating the ideal way of life and usually rendered as Islamic 'law'. Discussion of the shari?a includes an extended conversation concerning the justification and conduct of war. The work of al-Shaybani (d. 804) and other early scholars in the Hanafi school illustrates an important moment in this conversation, establishing precedents to which subsequent generations of Muslims (including contemporary Muslims) must respond. Further, (...) the accomplishments of these scholars provide an important example to all those engaged in thinking about military ethics. (shrink)
Since this book is a cross-disciplinary study in philosophy and legal history, it may present some problems for readers who come to it with strong interests ...
This study focuses on current jurisprudential debate between the "positivist" views of Herbert Hart and the "rights thesis" of Ronald Dworkin. MacCormick provides a critical analysis of the Dworkin position while also modifying Hart's. It stands firmly on its own as a contribution to an extensive literature.
The Intellectual Foundations of Christian and Jewish Discourse is a unique and controversial analysis of the genesis and evolution of Judeo-Christian intellectual thought. Jacob Neusner and Bruce Chilton argue that the Judaic and Christian heirs of Scripture adopted, and adapted to their own purposes, Greek philosophical modes of thought, argument and science. Intellectual Foundations of Christian and Jewish Discourse explores how the earliest intellectuals of Christianity and Judaism shaped a tradition of articulated conflict and reasoned argument in the search for (...) religious truth and focuses especially on methods of discourse in the Judaic and Christian intellectual and literary traditions. (shrink)
Human reasoning and legal analysis -- Paradigms and the process of legal analysis -- Logic, rhetoric, and legal analysis -- Advanced analytical tools in legal analysis -- Complex legal analysis and communication.
Though the process of meaning construction is widely recognized to be a crucial factor in the mobilization, unfolding, and outcomes of social movements, the conditions and mechanisms that allow meaning construction and cultural transformation are often misconceptualized and/or underanalyzed. Following a "tool kit" perspective on culture, dominant social movement theory locates meaning only as it is embodied in concrete social practices. Meaning construction from this perspective is a matter of manipulating static symbols and meaning to achieve goals. (...) I argue instead that meaning is located in the structure of culture, and that the condition and mechanism of meaning construction and transformation are, respectively, the metaphoric nature of symbolic systems, and individual and collective interpretation of those systems in the face of concrete events. This theory is demonstrated by analyzing, through textual analysis, meaning construction during the Irish Land War, 1879-1882, showing how diverse social groups constructed new and emergent symbolic meanings and how transformed collective understandings contributed to specific, yet unpredictable, political action and movement outcomes. The theoretical model and empirical case demonstrates that social movement analysis must examine the metaphoric logic of symbolic systems and the interpretive process by which people construct meaning in order to fully explain the role of culture in social movements, the agency of movement participants, and the contingency of the course and outcomes of social movements. (shrink)
The logistic function now constitutes the most widely used model for there presentation of growth kinetics of the continuous monotonous type in biological systems (populations, organisms, organs, ...). This ubiquity led to consider logistics from a phenomenological rather than mechanistic viewpoint. Whence the question : can logistics be given an interpretation, a signification which confers the rank of an "explicative" model to it? This Note presents some critical comments on the relationships between logistics and three types of biological systems (...) : population demography, environmental resources, autocatalyzed reactions. The so-called functional (in the mathematical meaning) interpretation, which is then discussed, is based upon a variational principle : the occurrence of a minimum of a function associated with the logistic law. Its present limitation to the only simple logistics of Verhulst and the difficulties of its expression in biological terms are then pointed out. (shrink)
In the course of that critical study he discusses the work of many of the most influential lawyers and philosophers of the era, including Isaiah Berlin, Richard ...
Unger shows how a changed practice of legal analysis can reshape the dominant institutions of representative democracy, market economy and free civil society.
Provides an introduction to the development of originalist thought and showcases the great range of contemporary originalist constitutional scholarship.
La interpretaci¢n del derecho tiene un car cter constitutivo -y no meramente declarativo- y consiste en la producci¢n por el int‚rprete (a partir de textos normativos y de los hechos relativos a un caso determinado) de normas jur¡dicas ...
In Law’s Empire, Ronald Dworkin argues that the choice between conflicting interpretations of law is, and should be, influenced by the aspiration to “integrity,” that is, the construction of law as a coherent whole, as though it were the product of a single author. I argue that, particularly under conditions where opinion on relevant issues is significantly divided, the search for a single coherent explanation of law may be seriously misleading. The idea of integrity is a principled basis for (...) legal interpretation only where there is an underlying unity, rather than an underlying plurality. Dworkin suggests that there is a basis for striving toward such unity, and for an obligation to obey the law, in our “associative” obligations to fellow members of our political community. I argue that such obligations, to the extent that they exist, are too weak to provide an adequate basis for a moral obligation to obey the law. (shrink)
This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing Heck’s (...) metaphor of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)
The seven original essays included in this volume, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there (...) is a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This is the first volume to consider the intersection between objectivity in ethics and objectivity in law. It presents a state-of-the-art survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication. (shrink)
Through an analysis of the US Supreme Court's case Heller this paper argues that legal process can be pragmatically reconceptualized so as to create information necessary to decide complex social issues. This is in contrast to other more standard conceptions of law as more emphasizing what information ought to be excluded.
Although the Islamic religion is well known, many people are less familiar with Sufism—the esoteric component of Islam. The Secret of Islam explores the mystical path of Sufism, which focuses on love and compassion. Sections proceed through the levels of Sufism: Journey of the Disciple, Actions, Spiritual Journey of the Seeker, and Flowering of the Perfect Human.
This dissertation is an analysis of the development of dialectic and argumentation theory in post-classical Islamic intellectual history. The central concerns of the thesis are; treatises on the theoretical understanding of the concept of dialectic and argumentation theory, and how, in practice, the concept of dialectic, as expressed in the Greek classical tradition, was received and used by five communities in the Islamic intellectual camp. It shows how dialectic as an argumentative discourse diffused into five communities (theologicians, poets, (...) grammarians, philosophers and jurists) and how these local dialectics that the individual communities developed fused into a single system to form a general argumentation theory (adab al-bahth) applicable to all fields. I evaluate a treatise by Shams al-Din Samarqandi (d.702/1302), the founder of this general theory, and the treatises that were written after him as a result of his work. I concentrate specifically on work by 'Ad}ud al-Din al-Iji (d.756/1355), Sayyid Sharif al-Jurjani (d.816/1413), Taşköprüzâde (d.968/1561), Saçaklızâde (d.1150/1737) and Gelenbevî (d.1205/1791) and analyze how each writer (from Samarqandi to Gelenbevî) altered the shape of argumentative discourse and how later intellectuals in the post-classical Islamic world responded to that discourse bequeathed by their predecessors. What is striking about the period that this dissertation investigates (from 1300-1800) is the persistence of what could be called the linguistic turn in argumentation theory. After a centuries-long run, the jadal-based dialectic of the classical period was displaced by a new argumentation theory, which was dominantly linguistic in character. This linguistic turn in argumentation dates from the final quarter of the fourteenth century in Iji's impressively prescient work on 'ilm al-wad'. This idea, which finally surfaced in the post-classical period, that argumentation is about definition and that, therefore, defining is the business of language—even perhaps, that language is the only available medium for understanding and being understood—affected the way that argumentation theory was processed throughout most of the period in question.The argumentative discourse that started with Ibn al-Rawandi in the third/ninth century left a permanent imprint on Islamic intellectual history, which was then full of concepts, terminology and objectives from this discourse up until the late nineteenth century. From this perspective, Islamic intellectual history can be read as the tension between two languages: the "language of dialectic" (jadal) and the "language of demonstration" (burhan), each of which refer not only to a significant feature of that history, but also to a feature that could dramatically alter the interpretation of that history. (shrink)
With the growth of Muslim economies, both at the national and international levels, the issue of riba (interest, usury) poses great difficulties. The charging or receiving of riba has been forbidden in Islam, which presents a major problem to financial institutions that charge interest. Muslim legal scholars belonging to all schools of legal thought have reinterpreted scriptural sources to accommodate drastic economic changes; practical considerations have forced Muslim groups, both of Sunni and Shi'ite persuasion, to justify interest-based banking and other (...) institutions of finance. As a matter of religion, the status of interest is far from resolved. However, within the legal tradition, there are ethical principles like maslahah (public good) and la darar wa la dirar (no harm, no harassment) that will determine the future direction of a Muslim search for a morally responsible economy. (shrink)
In this paper I examine the counterfactual test for legislative intention as used in Riggs v. Palmer. The distinction between the speaker's meaning approach and the constructive interpretation approach to statutory interpretation, as made by Dworkin in Law's Empire, is explained. I argue that Dworkin underestimates the potential of the counterfactual test in making the speaker's meaning approach more plausible. I also argue that Dworkin's reasons for rejecting the counterfactual test, as proposed in Law's Empire, (...) are either too weak or unsound. A deeper reason for rejecting the counterfactual test as a method for the speaker's meaning approach is proposed in this paper. The difference between the counterfactual test and other tests for legislative intention which seem also to make use of counterfactual conditions in explained. (shrink)
Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...) virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances. (shrink)
This paper suggests an alternative reading of Practice in Christianity to Merold Westphal’s interpretation of the text as defining what he calls “religiousness C.” Attending closely to the rhetorical construction of Practice, and situating it in the context of Kierkegaard’s intensive reading of Luther late in his life, I argue that this text extends the Postscript’s meditation on inwardness and writing to one of the central theological constructs of Lutheranism, the distinction between law and gospel. On my reading, (...) Practice both defends the primacy of faith and grace within Christianity, and refuses their commodification into directly communicable results. At the end of this paper, I consider Kierkegaard’s seeming retraction, in 1855, of two rhetorical features of Practice that my reading emphasizes. Iconclude that this gesture in fact intensifies Kierkegaard’s appropriation of the law/gospel paradigm, and speaks to the impossibility of any direct, comprehensive, and final account of authentic Christian life. (shrink)
Law and morality : constructs and models -- The morality of cognition : the normativity of ordinary reasoning -- Law in action : a praxeological approach to law and justice -- Law in context : legal activity and the institutional context -- Procedural constraint : sequentiality, routine, and formal correctness -- Legal relevance : the production of factuality and legality -- From law in the books to law in action : egyptian criminal law between doctrine, case law, jurisprudence, and practice (...) -- The natural person : the contingent and contextual production of legal personality -- The production of causality : a praxeological grammar of the use of causal concepts -- Intention in action : the teleological orientation of the parties to criminal cases -- Morality on trial : structure and intelligibility of the court sentence -- Questions of morality : sequential, structured organization of the interrogation -- The categories of morality : homosexuality between perversion and debauchery. (shrink)
David Lyons is one of the preeminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses "formal" justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)
To be presented at an International Conference on Law, Language, and Interpretation, at the University of Akureyri, Akureyri, Iceland, April 1-2, 2007.
