This paper sets out a view of a General Jurisprudence that is needed to underpin the institutionalised discipline of law as it becomes more cosmopolitan in the context of “globalisation”, and considers its implications. Part I restates a position on the mission and nature of the discipline of law and of the role of jurisprudence, as its theoretical part, in contributing to the health of the discipline. Part II clarifies some questions that have been raised about this conception of General (...) Jurisprudence: (i) the implications of “globalisation”; (ii) The meaning of “General Jurisprudence” in this context; (iii) The relationship between Jurisprudence, Legal Philosophy, and social scientific approaches to law; and (iv) The significance of the idea of “non-state law”. Part III illustrates through concrete examples some implications for possible agendas and issues suggested by this model within the areas roughly characterised as analytical, normative, empirical, and critical jurisprudence, including critical analysis of the assumptions and presuppositions typically underpinning mainstream work in fields such ascomparative law, public international law, religious law, and socio-legal studies. (shrink)

In modern jurisprudence it is taken as axiomatic that John Austin's sanction-based account of law and legal obligation was demolished in H.L.A. Hart's The Concept of Law, but Hart's victory and the deficiencies of the Austinian account may not be so clear. Not only does the alleged linguistic distinction between being obliged and having an obligation fail to provide as much support for the idea of a sanction-independent legal obligation as is commonly thought, but the soundness of Hart's claims, as (...) well as the claims of many legal theorists who have followed him, depend on a contested view of the nature of legal theory. If the task of a theory of law, as Joseph Raz and others have influentially argued, is to identify the essential features of the concept of law, then the theoretical possibility, if not the empirical reality, of a sanction-free legal system is what is most important. But if the task of a theory of law is to provide philosophical and theoretical illumination of law as it exists and as it is experienced, then a theory of law that fails to give a central place to law's coercive reality may for that reason be deficient as a theory of law. The question of the soundness of the Austinian account, therefore, may be a function of the answer to the question of what a theory of law is designed to accomplish. (shrink)

Dhall (2010) posited that quantum holism can provide an alternate justification for human rights. This article explores how such a foundation challenges aspects of international law and assertions of cultural relativism that have stymied the ongoing development of a universal human rights culture.

This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen as deeply (...) puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief. (shrink)

The Communist Manifesto’s salient point was set out in Critics of the Gotha Program as “From Each According to Their Abilities, to Each According to Their Needs”. The demise of communism in the former Soviet Union has caused its critics to claim that ‘revolutionary’ political theory has no basis for legal or philosophical development. The contention of those who oppose radical socialism achieved by the levelling of the classes proclaim that this is an unattainable goal. They argue that a ‘withering (...) of the state’ is not possible for the implementation of Marx’s theory because of the centralisation that is inevitable in socialism which leads to an aggregate of relationships that redistributes power at the apex of the hierarchy. However, this appraisal has to be viewed with reference to the adoption by Marxists of socio legal theory as an analytical tool that has spawned arguments based on legal realism. This article examines the construction of these arguments within the sociology of law and looks at the inception of critical race theory which projects historical injustices towards a racial minority and seeks to transform society by exposing law as an instrument of oppression. (shrink)

A communitarian perspective, which is characteristic of African normative thought, accords some kind of primacy to society or a group, whereas human rights are by definition duties that others have to treat individuals in certain ways, even when not doing so would be better for others. Is there any place for human rights in an Afro-communitarian political and legal philosophy, and, if so, what is it? I seek to answer these questions, in part by critically exploring one of the most (...) influential theoretical works on human rights in a sub-Saharan setting, namely, Claude Ake’s ‘The African Context of Human Rights’. Ake famously maintains that a typically Western approach to rights is inappropriate in the sub-Saharan region, in two major respects. First, Ake contends that although a human rights legal framework might be suitable for an ‘individualistic’ society, it is not for one of the sort common among traditional black peoples, for whom group rights are alone apt. Second, Ake maintains that, insofar as rights are relevant, rights to socio-economic goods are of much more importance in an African context than rights to civil liberties, due process and the like. Using Ake’s article as a foil, I draw on values salient in sub-Saharan moral worldviews to construct a unified philosophy of rights that not only provides reason to doubt his two claims, but also offers a promising way to reconcile a communitarian framework with a robust prizing of human rights alongside ones that are more collectively oriented. In short, I aim to provide a principled foundation for the core elements of the African Charter of Human and Peoples’ Rights. (shrink)

Išplitusio moralinio nihilizmo bei klasikinio moralinio realizmo problemų ir kritikos kontekste teisininkų etikos vertybių galimybė įgyti daugiau ar mažiau realų pavidalą bei įgauti priimtino modelio formą yra tapusi neapibrėžta. Kita vertus, akademinėje ir ypač profesinėje teisininkų bendruomenėje teisininko buvimo etišku reikšmė ir poreikis vis labiau akcentuojami. Analitiškai ir kritiškai aptarus tokį status quo šiame straipsnyje pristatoma alternatyvi teisininkų etikos vertybių realaus egzistavimo perspektyva, taip pat formuluojant teisininkų etikos modeliavimo gaires. Ši perspektyva remiasi subjektyviąja ontologija ir pamatiniais moralinio proto principais: altruizmu (...) ir teisingumo kaip proporcinės lygybės nuostata. (shrink)

In this thesis I outline a view of primary legislation from a systems perspective. I suggest that systems theory and, in particular, autopoietic theory, as modified by field theory, is a mechanism for understanding how society operates. The description of primary legislation that I outline differs markedly from any conventional definition in that I argue that primary legislation is not, and indeed cannot be, either a law or any of the euphemisms that are usually accorded to an enactment by a (...) parliament. I cite two reasons for such a conclusion. The primary reason for my conclusion is that I see primary legislation as being an output of a particular subsystem of society, while the law is the output of another subsystem of society. I argue that these outputs are the discrete products of separate subsystems of society. I argue that primary legislation should be viewed as a trinity. The first state of this trinity is that, upon enactment, primary legislation is a brute fact in that it is but a thing and the only property of this thing is that of being a text. The second state of this trinity is that following the act of enactment, the thing enacted will be reproduced and this reproduction is a separate thing that will sit in some repository until used. The third state of this trinity is that, upon use, this thing that is primary legislation will be transformed into an object and the user will attribute such functions and attributes to that object as are appropriate to the context within which the object is used. The thing has therefore become an object and an institutional fact. The second reason for my conclusion that primary legislation is not a law relates to the fact that the thing that is primary legislation is a text and the only function of a text is that it is available to be read. That is to say, of itself, a text is incapable of doing anything: it is the reader who defines the status of the text and attributes functions and attributes. Upon use, primary legislation thus becomes a censored input for future action and one of these actions may be some statement by a court of law. I assert that the view of primary legislation that has been accepted within the body politic is the product of the discourse of a particular subsystem of society that I have designated 'the legal practice', and I outline why and how this has occurred. Outlining a view about primary legislation also necessitates outlining a view as to the nature of the law. I assert that the law is a myth and I see this myth as a product of the discourse of the legal practice. I have asserted that although it is the judges that state the law, such statements flow from the discourse of those who practise the law. (shrink)

For various centuries, the question of whether natural law is normative or not has been posed. In contemporary legal philosophy, the scholar who is considered to be the main defender of natural law is the Catholic philosopher John Finnis. Finnis contends that natural law can provide a good account of normativity. However, is Finnis right? In this article, I aim at answering this question and I contend that, in broad terms, Finnis is correct in affirming that natural law can provide (...) a good account of normativity. (shrink)