Almost twenty years ago, a genuinely new school of thought emerged in the field of jurisprudential methodology. It is a pragmatist school. Roughly, the pragmatists contend that, when inquiring about the nature of law, we should evaluate potential answers based on practical criteria. For many legal philosophers, this contention seems both unclear and unhinged. That appearance is lamentable. The pragmatist approach to jurisprudential methodology has received insufficient attention for at least two reasons. First, the pragmatists do not conceive of themselves (...) as comprising a school; in fact, these proponents have different names for their common position, which makes it hard to see the commonalities. Second, the most famous statement of the pragmatist view has received withering criticism, criticism that has not been sufficiently answered, a fact that may lead opponents of pragmatism, as well as potential supporters, to doubt that a viable view of this kind can be held. This Essay aims to serve as a corrective. (shrink)

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. (shrink)

The contents include chapters covering: theory of command; theory of sovereignty; evidence of law; theory of legal duty theory of legal sanctions; theory of the legal object; theory of imputation; theory of legal rights; rights related to ownership; foreign rights; codification of the law; & others.

In this article, I address general jurisprudence's ‘dirty little secret' or its apparent tension with normative conceptions of democracy. I argue that this tension is not coincidental, but a histor...

This article is the first attempt to justify the "next" milestone in the development of legal realism: hyperrealism. The implications of digitalization have become the new fuel for the legal realist's jurisprudence prediction theory, that is, empirical research to predict the judge's or the court's decision. Indeed, that was impossible for American realists in the early twentieth century, and all the attempts failed. Therefore, tools such as Judicial Analytics allow us to prove that personal motives and prejudices affect a (...) dispute's resolution. Based on a systemic, comparative, and interdisciplinary analysis that intermingles legal theory, data analytics and digital technologies, the article substantiates the concept of hyperrealism itself. It evaluates the advantages and disadvantages of its primary tool—judicial analytics. The authors state the necessity of creating regulatory mechanisms of "curbing" to use them to improve justice and minimize the risk of rights violations. They propose using tools of expert evaluation, standardization, and ethical regulation of forensic analysis. (shrink)

Hart said that analytical jurisprudence is descriptive and general but did not draw an explicit distinction between conceptual questions that are in the main theoretical and others that are in the main practical. In Hart’s account, analytical jurisprudence searches for some kind of clarity about the idea of law and the other basic legal ideas as they occur in our ordinary experience. In the Postscript he explains that jurisprudence is the ‘theoretical or scientific study of law as (...) a social phenomenon’, which may, on occasion, but typically does not, rely on moral deliberation. It is to be contrasted to ‘practical’ questions as to how to live one’s life. I shall call this view ‘descriptivism’. It has been a very influential position in analytical jurisprudence and it is being defended by Hart’s followers even today. In this essay I raise some doubts about its coherence. First, I do not think Hart defended this view consistently —even though he did so in the Postscript. Second, I do not think that the position has been adequately defended, either by Hart or by his followers. There is still a great deal of ambiguity as to the precise position of jurisprudence between theoretical and practical reason.Resumen:Hart sostuvo que la jurisprudencia analítica es descriptiva y general pero no elaboró una distinción explícita entre las preguntas conceptuales que son principalmente teóricas y otras que son principalmente prácticas. En la explicación de Hart, la jurisprudencia analítica busca cierto tipo de claridad acerca de la noción de derecho y las demás ideas básicas tal cual ellas ocurren en nuestra experiencia ordinaria. En el Post Scriptum, él explica que la jurisprudencia es el ‘estudio teórico o científico del derecho como un fenómeno social’, el cual puede, en ocasiones, basarse en la deliberación moral, pero típicamente no lo hace. Esto puede contrastarse con las preguntas “prácticas” acerca de como las personas dirigen su propia vida. Llamo esta tesis “descriptivismo”. Esta ha sido una posición muy influyente en la jurisprudencia analítica y ha sido defendida por los seguidores de Hart hasta hoy. En este ensayo despierto dudas sobre su coherencia. Primero, no creo que Hart defendiera esta tesis de forma consistente. Segundo, no creo que la posición haya sido defendida de forma adecuada, ni por Hart ni por sus seguidores. Aún existe una gran ambigüedad acerca de la posición exacta de la jurisprudencia entre la razón teórica y la razón práctica. (shrink)

Modern international law has an inseparable, yet uneasy connection to the analytical tradition in jurisprudence, yet the two have not been easy bedfellows. International lawyers have struggled to find a convincing account of the legality of the object of their study, largely retreating into pragmatism, whilst legal theorists have marginalised the study of international law as a result. In this article, however, I will consider recent hopes for a re-engagement between the two disciplines, brought about by a growing dissatisfaction (...) with the disciplinary scope and coherence of both fields. In particular, I draw on recent work by the international lawyer Patrick Capps, challenging post-Hartian conceptual theory and instead defending a more purposive, evaluative account of international law. Whilst I am sympathetic to this aim, I will show why Capps' aprioristic account of law as aimed at the protection of human dignity results in an account of legal practice which both distorts reality and, in any event, ends up subordinating the international legal order again as a deviant exception to a more perfect domestic paradigm. (shrink)

African jurisprudence, like African philosophy, continues to be hotly debated. This article contends that the debate straddles the uniqueness claim which either emphasises the existence or possibility of a peculiar legal framework on the continent, and a historical co-extensional position reiterating that African jurisprudence is a continuum of other legal traditions. The article argues that there is no uniquely African jurisprudence, and that what obtains within the structures of jurisprudence on the continent also exists within various (...) legal traditions elsewhere, and as such can at best be described as ‘jurisprudence in Africa’ rather than ‘African jurisprudence’. It defends this thesis through analytic and comparative explications of the content of natural law theory and legal positivism as experienced on the continent. It concedes that relics of the colonial legal experience create contestations that inform scholars’ calls for a return to traditional legal systems. It concludes that a reconstructive jurisprudence in Africa must take cognisance of the continent’s historical and evolutionary legal experiences, but that a unified or monolithic theory may not be sufficient to address the choice of functional jurisprudence. Keywords African jurisprudence, jurisprudence in Africa, African legal evolution, diffused legal theories. (shrink)

Why, then, has Anglo-American jurisprudence remained staunchly indifferent to history? How has it been able to maintain its confident assumption that the analytical and the historical can be neatly...

Analytic jurisprudence often strikes outsiders as a discipline unto itself, unconnected with the problems that other legal scholarship investigates. Gerald Postema, in the article to which this paper responds, traces this “unsociability” to two narrowing defects in the project of analytic jurisprudence: from Austin on, it has concerned itself largely with the analysis of professional concepts, without connecting that analysis with other disciplines that study law, nor with the history of jurisprudence itself, nor with general (...) philosophy; analytic jurisprudence studies only time-­‐slice legal systems, rather than legal systems unfolding in history. He argues that a time-­‐slice legal system is incapable of explaining the normativity of law. Postema recommends an approach to jurisprudence based on sociability with other disciplines, including its own history and general philosophy; he also recommends an approach grounded in synechism – Peirce’s label for the attempt to find continuities between seemingly-­‐discontinuous phenomena. My comments are largely sympathetic to Postema. I show that his argument about the normativity of law makes the most sense if we embed it in a “meaning as use” theory of legal language and its conceptual content. I am more skeptical of synechism, which on its face rejects a perfectly valid and valuable historiography focused on discontinuity – the kind of history written by Kuhn, Foucault, and Marx. I show that Peirce’s argument for synechism fails, whereas Postema’s version of synechism broadens the notion of continuity to include what might ordinarily be thought of as discontinuities. On the one hand, that rescues Postema from the charge of ruling out valid approaches to history on a priori grounds; on the other, it makes Postema’s version of synechism less distinctive than he supposes. (shrink)

Analytical jurisprudence often proceeds with two key assumptions: that all law is either contained in or traceable back to an authorizing law-state, and that states are stable and in full control of the borders of their legal systems. What would a general theory of law be like and do if these long-standing presumptions were loosened? The Unsteady State aims to assess the possibilities by enacting a relational approach to explanation of law, exploring law's relations to the environment, security, and (...) technology. The account provided here offers a rich and renewed perspective on the preconditions and continuity of legal order in systemic and non-systemic forms, and further supports the view that the state remains prominent yet is now less dominant in the normative lives of norm-subjects and as an object of legal theory. (shrink)

Is the field of general jurisprudence catching up – or is it simply getting distracted? Whereas legal philosophy has always featured claims about the content of the folk concept of law, it is only in the last few years that it has begun to self-consciously test those claims. Kenneth Himma’s recent review of this effort in Jurisprudence is a milestone: it reveals X-Jur as having progressed to the point of attracting broader philosophical attention, and it challenges X-Jur’s practitioners (...) to persuade those not already convinced of the potential of alternatives to the analytic method. I take Himma’s critique as an opportunity to sketch some preliminaries for a theory of experimental jurisprudence, considering, in turn, the nature of jurisprudential truth, the role of expertise, and how empirical data might best be interpreted to help adjudicate claims about the content of the folk concept. I conclude with a brief discussion of the field’s future. (shrink)

The Province of Jurisprudence Democratized explores the implications of taking a vigorously democratic approach to issues of traditional legal theory. Allan C. Hutchinson introduces the democratic vision and examines the complementary philosophy of a Dewey-inspired pragmatism. This is followed by an examination from a pragmatic perspective of the dominant theories of analytical jurisprudence in both their positivist and naturalist forms. He emphasizes the contested concepts of 'truth', 'facts' and 'law/morality relation' and explores what a more uncompromising democratic/pragmatic agenda (...) for law and legal theory would entail. The Author's intent is to contribute to the shift away from a technical and elite philosophical approach to jurisprudence to a more democratic engagement. It advances and follows through on the critical claim that there is no position of theoretical or political innocence. Like the law it seeks to illuminate, legal theory must recognize its own political and social setting as well as its own responsibilities. Moreover, whatever else democracy might entail or imply, it opposes elite rule whether by autocrats, functionaries or theorists, however enlightened or principled their proposals or interventions may be: authority must come from below, not above. (shrink)

The Iran-United States Claims Tribunal is the most important source of international arbitral decisions for at least the past half century, and its decisions have contributed significantly to the development of international law and the law of international commercial transactions. Judge Aldrich, who is the only member of the Tribunal to have served since its inception in 1981, has written what will be recognised as the definitive book about the jurisprudence of the Tribunal. The book seeks to preserve and (...) to make accessible the substantial body of Awards and Decisions rendered by the Tribunal during the years since it was established in. Its hundreds of Awards and Decisions may be individually consulted but hitherto there has been no detailed analytical guide through the vast published work of the Tribunal. This important new book provides a two-fold service. First, it quotes from the most significant Awards and Decisions at sufficient length so that both their substance and the reasoning of the Tribunal can be understood from access to the present volume alone. Second, it organizes and summarizes the decisions to facilitate finding complete texts relevant to any particular issue. (shrink)

What is the core of legal scholarship? How can we understand its relation to other disciplines, such as moral and political philosophy, sociology, and economics? I explore these questions by analysing the impact of the dual nature thesis. Criticising established theories of legal scholarship, I defend the ideal of an integrative jurisprudence. Integrative jurisprudence combines the two dimensions of law by employing analytical, empirical, and normative methods. I then discuss three objections and address the problem of how to (...) bridge is and ought. In the course of my analysis of three different bridge theories, I ultimately further develop the dual nature thesis into a triadic nature thesis. (shrink)

Allan Hutchinson’s recent book, The Province of Jurisprudence Democratized, considers what is involved in seeking to establish the province of jurisprudence as a distinctive 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 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 as well as 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. 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. (shrink)

Legal philosophy is a general and systematic reflection about fundamental questions regarding law. The fact that despite the efforts of contemporary jurists terms like ‘legal philosophy’, ‘legal theory’ and ‘jurisprudence’ do not have established meanings is one of the reasons behind the dispute regarding the function and validity of legal philosophy; a second issue worth considering is the transformations of law due to diverse influences such as globalization or theories on human rights. This article intends to establish common ground (...) for the discussion surrounding this issue by revisiting some of the differences between the two main western traditions, the article then proceeds to describe the general perception and evolution of jurisprudence.Resumen:La filosofía del derecho es una reflexión general y sistemática sobre las cuestiones fundamentales del derecho. El hecho de que términos como “filosofía del derecho”, “teoría del derecho” y “jurisprudencia” no tengan significados delimitados e indisputables, a pesar de los esfuerzos de los juristas contemporáneos, es una de las razones que junto con las transformaciones del derecho en virtud de la globalización y las teorías sobre derechos humanos han dado lugar a diversas disputas sobre la función y validez de la filosofía del derecho. En este artículo se pretende establecer una base común para la discusión en torno a estos problemas mediante la revisión de algunas de las diferencias que las dos principales tradiciones occidentales para después describir la precepción general y evolución de la filosofía del derecho. (shrink)

Because gender norms shape the content and application of the law, feminist scholarship has a lot to contribute to the study of law. Gender is also relevant to several problems in normative jurisprudence, and to some problems in special jurisprudence (the study of concepts in the law). But gender has no relevance to general jurisprudence for there is no sense in which the concept of law is ‘gendered’, and no answer to leading problems in general jurisprudence (...) depends on any thesis about gender. Yet some feminist scholars, including prominently Joanne Conaghan, argue that gender is pervasively relevant to jurisprudence, though its relevance has been screened out by methodological errors that characterize what she calls ‘the analytical jurisprudential mind’. I argue that this is incorrect, by examining the relationship between gender and law, the relationship between sex and gender, and the place of sex in the legal concept of marriage. The methodological charges against ‘the analytical jurisprudential mind’ prove unfounded. I also suggest that hostility to analytical methods is likely to be damaging to feminist legal theory, and urge feminist scholars to look again at the resources of analytic legal philosophy. (shrink)

Analytical jurisprudence has been mostly silent on the role of precedent in legal adjudication.

Some Anglophone legal theorists look to analytic philosophy for core presuppositions. For example, the epistemological theories of Ludwig Wittgenstein and Willard Quine shape the theories of Dennis Patterson and Brian Leiter, respectively. These epistemologies are anti-foundational since they reject the kind of certain grounding that is exemplified in Cartesian philosophy. And, they are coherentist in that they seek to legitimate truth-claims by reference to entire linguistic systems. While these theories are insightful, the current context of information and communication technologies (...) (ICT) has created new informational concepts and issues. As a result, the analytic epistemologies are increasingly challenged by alternative perspectives. One such alternative is Structural Realism (SR), which is influential among the natural sciences, and especially physics. “Informational Structural Realism,” (ISR) is a variant of SR that was introduced by Luciano Floridi. Unlike the coherentist theories, ISR promotes examination of the connections among types of information and informational structures. It is an important shift for legal theory today, since the challenges that the ICT presents have to do with pattern recognition across vast domains of diverse data. An informational jurisprudence is now required to understand the issues emerging from the ICT. (shrink)

In recent decades, neo-republican philosophers have developed a theory of freedom as non-domination, which, they claim, is conceptually and analytically distinct from the “liberal” concept of freedom as non-interference. However, neo-republicans have intervened in constitutional debate almost exclusively in relation to structural issues of institutional competence, and have made little impact on the analytical jurisprudence of constitutional rights. While judicial review seems ill equipped to respond to the distributive dimensions of republican freedom, republicans like Richard Bellamy have argued that (...) the whole edifice of countermajoritarian, strong-form judicial review is itself an affront to freedom as non-domination properly understood. Republican freedom, in this lens, is defined structurally, procedurally and politically rather than in relation to a definite set, concept or theory of rights that is put outside and beyond politics. And partly for this reason, there has been little commentary concerning how the theory of freedom as non-domination might inform constitutional-rights doctrine. This article will argue, first, that the neo-republican view can usefully inform constitutional-rights doctrine notwithstanding republican reservations concerning judicial power. Second, it will propose a number of specific ways in which the jurisprudence of constitutional rights might account for the central concerns of the republican idea. (shrink)

Originally written in 1990, this reviews largely late 20th century debates on the study of law as Logic, Discourse, or Experience; the Unity of the Legal System and the Problem of Reference; Semiotic Presuppositions of Traditional Jurisprudence (Austin, Hart, Kelsen, Dworkin, Legal Realisms); then turns to legal philosophies explicitly Employing Forms of Semiotics (Kalinowski, the Italian Analytical School, Rhetorical and Pragmatic Approaches, Sociological and Socio-Linguistic Approaches, Peircian Legal Semiotics, Greimasian Legal Semiotics and Aesthetic/Symbolic Approaches). A major section then offers (...) (from a largely Greimasian point of view) some hypotheses for legal semiotics on the Problem of Reference, Semantic and Pragmatic Levels, Semiotic Groups and “The Legal Culture”, Normativity and Justification, and finally considers the implications for particular legal phenomena: the “Legal System”, Legal Institutions, Legal Codes, Legal Rules, Rights, Courtroom Behaviour: Witness and Counsel, The Judge: Justification of Decisions on Law, and the Criminal Justice Process. A conclusion addresses the status of legal semiotics. (shrink)

Imbalance in analytical legal theory's approach to prima facie legal phenomena : re-balancing after imbalance : an incremental addition to analytical legal theory -- Legal officials, the rule of recognition, and international law -- The hierarchical view of legal system and non-state legality -- Meta-theoretical-evaluative motivations -- An inter-institutional theory -- An inter-institutional account of non-state legality -- Pathologies of legality : novel technologies and their implications for conceptions of legality : the consequences of re-socializing a descriptive-explanatory view of law.

The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its limit, (...) the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law. The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first article of the discussion, can be challenged. (shrink)

This article develops a model first proposed in my book Jurisprudence and communication [67]. It takes as its starting point the generally conception that legal rules are valid norms, involving a normative content and expressing themselves in reality through observable conduct. This dualistic character of law is central. Law is both fiction and factual, ideal and real. But the viewpoint that a legal rule is a manifestation of validity in reality, through empirical acts, raises the question how rules as (...) (valid) fictions can be known and understood in their linguistic form. How is meaning attributed to the legal words and how do these words relate to the world of fact? Taking an institutional-pragmatic approach as a starting point, an analytical model is created that can be used as an instrument for the relationship between legal rules as thought objects existing only in the mind, and legal rules as observable conduct. This model seeks to revise the classical models of legal communication that basically focus on the unilateral flow of legal information between ‘senders and receivers’ and their claim of linear causality between rules and conduct. The model here constructed in the theoretical part is then applied to several case studies, in order to analyze the construction of meaning in actual use. Two fundamental rights—the older codified in 1798 and the more recent codified in 1983—in the Dutch Constitution have been analyzed using the model as an instrument. Further, the remarkable shifts in article 96 of the Constitution, the declaration of war, and its consequences, resulting in a new category of war—the armed conflict—have been analyzed, as well as the phenomenon of ‘peacekeeping missions’ involving actual warfare. The new war terminology has created vagueness with respect to the clear-cut division between war and peace, which has been reflected in several cases before Court, including the Eric O. case. The present analysis of the case studies indicates that the model was not in all cases completely tailored to the facts: for example, in the case study on article 96 a broad spectrum of observable legal and non-legal actors dominated the facts in such a way that the model did not fully cover it. The observations on my book by the three respondents in this special issue have contributed to the adaptation and extension of the model. In the Postscript my responses suggest some ways in which their ideas can be implemented. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought (...) to copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

This article identifies and advocates one part of a renewed research agenda for analytical legal theory: a renewed ‘relational’ approach to characterization of the concept of law, following the lead set by Hart’s exploration of law’s relation to morality, coercion, and social rules. We advocate further descriptive-explanatory investigation of law’s relation to security, environment, and information technology, in the context of state and extra-state legal orders. This investigation is responsive to emerging legal phenomena as identified by the inter-institutional account of (...) legality developed in our recent book Legality’s Borders (Oxford University Press, 2010), and is further responsive to the interests and perspective of a modernized version of Hart’s ‘ordinary citizen.’ A renewed relational approach will provide a means to deeper characterization of the forms of legality arising within and around the increasingly unsteady municipal state in the modern era of increased interdependence and interconnection amongst state and extra-state legal orders.Resumen:El objetivo de este artículo es identificar y defender una parte de la renovada agenda de investigación de la teoría jurídica analítica: un renovado enfoque “relacional” sobre la manera de caracterizar el concepto de derecho —siguiendo la línea trazada por Hart de investigar la relación del derecho con la moral, la coerción y las reglas sociales—. Nosotros defendemos una investigación adicional de carácter descriptivo-explicativo sobre la relación que tiene el derecho con la seguridad, el medio ambiente y las tecnologías de la información, en el contexto de disposiciones jurídicas estatales y extra-estatales. Esta investigación responde a fenómenos jurídicos recientes del modo en que fueran identificados por la tesis inter-institucional de la legalidad desarrollada en nuestro reciente libro Legality’s Borders (Oxford University Press, 2010), y asimismo responde a los intereses y a la perspectiva de una versión modernizada del “ciudadano ordinario” de Hart. Un renovado enfoque “relacional” proporcionará los medios para un análisis más profundo de las formas de legalidad que surgen al interior y alrededor del cada vez más inestable estado municipal, en la era moderna de una mayor interdependencia e interconexión entre las disposiciones jurídicas estatales y extra-estatales. (shrink)

With a focus on the Common Law jurisdiction of England and Wales and the Civil Law jurisdiction of Vietnam, this article provides an analytical framework to address the uncertain jurisprudence of minor offence processes. The article’s approach is to seek an account of crime and criminal process that is most suitable for practice and most compatible with the broad notion of ‘criminal charge’ under international human rights instruments. It is argued that minor offences should be considered forms of less (...) serious crimes that are subject to short periods of imprisonment or non-custodial punishments and dealt with by summary procedures. The fragmentation of minor offences demands an approach to procedural pragmatism and procedural proportionality; that is, the procedure for each type of offence should be proportionate to the severity of punishment and fair as a whole. (shrink)

This project explores the "contradiction" that critics contend lies at the heart of the Supreme Court's capital sentencing jurisprudence. The doctrine of "guided discretion," represents the Court's attempt to achieve both consistency and individuation in capital sentencing. Guided discretion rejects the unbridled sentencing discretion of an earlier era that resulted in sentencing decisions that were "arbitrary and capricious." At the same time, guided discretion requires juries to give individualized consideration to the facts and circumstances of individual defendants. Critics contend (...) that consistency and individuation are mutually exclusive, and that "guided discretion" is a contradiction in terms. ;The analysis first attempts to isolate the moral dimension of the capital punishment debate, arguing that such analytical clarity is essential to any defensible view of capital punishment. Second, it sets forth and defends the coherence approach to moral and legal justification, according to which the specific moral and legal principles relevant to capital sentencing are evaluated for their compatibility with the principles of the legal system more generally. Third, the analysis canvasses the traditional justifications for punishment, as well as the development of the Court's capital sentencing jurisprudence, and identifies retribution and deterrence as the most promising rationales for the death penalty. Fourth, the claim of contradiction is considered in the context of legal liberalism, which, contrary to critics, has ample resources to accommodate the doctrinal balancing act that guided discretion entails. Moreover, examination of a typical capital sentencing statute establishes that the doctrine of guided discretion is compatible with at least some forms of retributivism and with traditional principles of deterrence. Finally, the analysis recognizes the limits of philosophical consistency. The capital sentencing process presents daunting practical challenges that a theoretical defense of guided discretion cannot fully address. Substantial reforms are needed before the theoretical coherence of guided discretion can be translated into a constitutionally defensible capital sentencing process. (shrink)

This essays argues that Freud’s vision of the rule of law may be worthwhile pondering by legal scholars. It can heighten awareness of its unconscious dimensions and point to a variety of ways in which the law functions as part of culture or civilization, rather than as a system with its own rules. The first two parts of the essay seek to reconstruct Freud’s notion of the rule of law as a dialectical or paradoxical civilizatory force, restraining the passions even (...) though they drive it. These two parts retrace Freud’s genealogy of the law’s prehistoric origins and unconscious dynamics, which can be found in Totem and Taboo and, in summary form, in Moses and Monotheism. Then, the third section critically assesses the problems and limitations of some of the uses legal scholars made of Freud’s genealogy. Finally, the essay returns to the intellectual context of Freud’s conception of the rule of law, concluding with the claim that a Freudian perspective implies, in fact, that legal studies should be conceived as cultural studies. (shrink)

This study uses a literature study of examining the Tarjih Council of Muhammadiyah, the second largest Islamic organisation in Indonesia. Criticism is directed towards manhaj’s principle which states that any classical Islamic school of law should not be embraced and, thus, breaks up from the chain of Islamic intellectuality. The critics, however, fail to cover the very idea of Muhammadiyah as an embodiment of the Islamic renewal vision. The article aims to reveal the evolution of the manhaj. The evolution will (...) be elaborated into stages to show the development of concepts and principles in each stage. The article is based on a literature study using constructive conceptual analysis. The analysis is divided into three steps, namely analytical assessment, performative aspects, and conceptual genealogy, stressing the reflective relationship between knowledge and social reality. The study shows that the Tarjih Council’s preference not to embrace any classical Islamic schools of law has developed since the establishment of the Tarjih Council. The developments of manhaj’s formulation occur in three stages from 1924 until 2000. The manhaj comes up with the synthesis of textuality, rationality, and spirituality as the basic vision of Muhammadiyah’s renewal idea which reflects the achievement of a modernist Islamic movement. The study, in comparison to previous research, provides a more comprehensive picture of the manhaj of Muhammadiyah as a representation of the Islamic renewal movement and shows how the manhaj comes to a synthesis that marks Muhammadiyah as a unique modernist-renewal movement.Contribution: The study enriches the perspectives on the manhaj as the backbone of Muhammadiyah ideology and shows that Islamic modernism in Indonesia has stepped further to uncover a synthesis suitable to Indonesian society. (shrink)