“Experimental jurisprudence” draws on empirical data to inform questions typically associated with jurisprudence or legal theory. Scholars in this flourishing movement conduct empirical studies about a variety of legal language and concepts. Despite the movement’s growth, its justification is still opaque. Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence,” it might seem, simply surveys laypeople. This Article elaborates and defends experimental jurisprudence. Experimental jurisprudence, appropriately understood, is (...) not only consistent with traditional jurisprudence; it is an essential branch of it. (shrink)
Jurisprudence is the prudence of jus, law's consciousness and conscience. Throughout history, when thinkers wanted to contemplate the organisation of society or the relationship between authority and the subject, they turned to law. All great philosophers, from Plato to Hobbes, Kant, Hegel, Marx and Weber had either studied the law or had a deep understanding of legal operations. But jurisprudence is also the conscience of law, the exploration of law's justice and of an ideal law or equity at (...) the bar of which state law is always judged. Jurisprudence brings together 'is' and 'ought', the positive and the normative, law and justice. But after a long process of decay, legal theory is today characterised by cognitive and moral poverty. Jurisprudence has become restricted and academically peripheral, a guidebook to technocratic legalism and a legitimation of the existent. Critical jurisprudence returns to the classical tradition of a general philosophy of law and adopts a much wider concept of legality. It is concerned both with posited law and with the law of the law. All legal aspects of the economic, political, emotional and physical modes of production and reproduction of society are part of critical jurisprudence. This widening of scope allows a radical rethinking of the nature of rights, justice, sovereignty and judgement. A political philosophy of justice today must examine the political economy of law; transitions from Empire to nation; ideological and imaginary constructions through which we understand ourselves and relate to others; ways in which gender, race or sexuality create forms of identity that both discipline bodies and offer sites of resistance. Law's complicity with political oppression, violence and racism has to be faced before it is possible to speak of a new beginning for legal thought, which in turn is the necessary precondition for a theory of justice. Critical Jurisprudence offers an ethics of law against the nihilism of power and an aesthetics of existence for the melancholic lawyer. (shrink)
Jurisprudence is aimed at students new to the study of legal philosophy, also offering new ideas and perspectives that will be of interest to established scholars. Bix seeks to explain the often complex and difficult ideas in Jurisprudence clearly, but in a way that avoids distortion of the ideas through over-simplification. As well as introducing the reader to the fundamental themes in legal philosophy, it also describes and comments critically on the writing of the foremost legal theorists. The (...) fifth edition has been revised and updated, taking into account the most recent scholarly work and elaborating on many of the key ideas and arguments. (shrink)
General jurisprudence-that branch of legal philosophy concerned with the nature of law and adjudication-has been relatively unaffected by the "naturalistic" strains so evident, for example, in the epistemology, philosophy of mind and moral philosophy of the past forty years. This paper sketches three ways in which naturalism might affect jurisprudential inquiry. The paper serves as a kind of precis of the main themes in my book NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM AND NATURALISM IN LEGAL PHILOSOPHY (Oxford (...) University Press, 2007). (shrink)
Introduction: From legal realism to naturalized jurisprudence -- A note on legal indeterminacy -- Part I. American legal realism and its critics -- Rethinking legal realism: toward a naturalized jurisprudence (1997) -- Legal realism and legal positivism reconsidered (2001) -- Is there an "American" jurisprudence? (1997) -- Postscript to Part I: Interpreting legal realism -- Part II. Ways of naturalizing jurisprudence -- Legal realism, hard positivism, and the limits of conceptual analysis (1998, 2001) -- Why Quine (...) is not a postmodernist (1997) -- Beyond the Hart/Dworkin debate: the methodology problem in jurisprudence (2003) -- Part III. Naturalism, morality, and objectivity -- Moral facts and best explanations (2001) -- Objectivity, morality, and adjudication (2001) -- Law and objectivity (2002). (shrink)
“Virtue jurisprudence” is a normative and explanatory theory of law that utilises the resources of virtue ethics to answer the central questions of legal theory. The main focus of this essay is the development of a virtue–centred theory of judging. The exposition of the theory begins with exploration of defects in judicial character, such as corruption and incompetence. Next, an account of judicial virtue is introduced. This includes judicial wisdom, a form of phronesis, or sound practical judgement. A virtue–centred (...) account of justice is defended against the argument that theories of fairness are prior to theories of justice. The centrality of virtue as a character trait can be drawn out by analysing the virtue of justice into constituent elements. These include judicial impartiality (even–handed sympathy for those affected by adjudication) and judicial integrity (respect for the law and concern for its coherence). The essay argues that a virtue–centred theory accounts for the role that virtuous practical judgement plays in the application of rules to particular fact situations. Moreover, it contends that a virtue–centred theory of judging can best account for the phenomenon of lawful judicial disagreement. Finally, a virtue–centred approach best accounts for the practice of equity, departure from the rules based on the judge’s appreciation of the particular characteristics of individual fact situations. [ABSTRACT FROM AUTHOR]. (shrink)
In the United States, the steady yellow light means that a driver should either speed up or slow down. State laws written about a driver’s behavior at these yellow lights are vague and indeterminate and result in what is referred to as the dilemma zone (Hurwitz et al. in Transp Res Part F Traffic Psychol Behav 15(2): 132–143, 2012). This paper will reconsider law’s vagueness as intentional rather than problematic, insofar as cultural understandings of the yellow light lead to a (...) framework of visual jurisprudence in which drivers interact with law through legal discretion and common sense confronting a yellow light. Through a jurisprudential juxtaposition between the yellow light and red light cameras used to enforce yellow lights, the semiotics of automaticity compete with the semiotics of context-bound decision-making. (shrink)
v. 1. Jurisprudence. The end of law -- v. 2. The nature of law -- v. 3. The scope and subject matter of law. Sources, forms, modes of growth -- v. 4. Application and enforcement of law. Analysis of general juristic conceptions -- v. 5. The system of law.
This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called 'globalisation' take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to (...) be critically reviewed and extended to take account of other legal traditions and cultures. Written by the one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation. This is essential reading for all students of jurisprudence and legal theory. (shrink)
What is law? Does it have a purpose? What is its relationship with justice? Do we have a moral duty to obey the law? These sorts of questions lie at the heart of jurisprudence. Moreover, every substantive or 'black letter' branch of the law raises questions about its own meaning and function. The law of contract cannot be properly understood without an appreciation of the concepts of rights and duties. The law of tort is directly related to several economic (...) theories of compensation. The criminal law is inextricably linked to philosophies of punishment? Understanding Jurisprudence explores these problems and provides an engaging introduction to the central issues of legal theory. The book navigates the reader through legal philosophy's fundamental concepts, concerns, and controversies. An experienced teacher of jurisprudence and distinguished writer in the field, Professor Wacks adopts an approach that is easy to follow and understand without avoiding the complexities and subtleties of the subject. Students of law, politics, philosophy, and other social sciences will find this an ideal guide to the essential themes of contemporary jurisprudence. Online Resource Centre A free online resource accompanies the book and provides the following resources: Analysis of current controversies of a jurisprudential nature such as current legal and moral controversies and political debates An additional chapter providing guidance and advice on the study of jurisprudence An interactive glossary of key terms relating to legal theory Further reading, including links to full text journal articles Questions and answers Useful Web links to support learning. (shrink)
The ‘jurisprudence of sport’ is a recent academic subject and still in its infancy. The term ‘jurisprudence of sport’ (JOS) was introduced in 2011 by Mitch Berman, one of the authors of the book. It is both an area of study and a method of study. Sport, understood as a system of rules, as a kind of legal system, is an area of study. Different sports, just like different legal systems, will sometimes present ‘competing’ solutions to a problem. (...) As a method it can be fruitful to look at sport from the viewpoint of a lawyer. By analogy, think of psychoanalysis, which is an area of study (of the mind), but also a method, e.g. to interpret literature. (shrink)
Jurisprudence - Essential Law Texts deals with the two main schools of jurisprudence, which are positivism and naturalism and also off-shoot movements of the positivist school, such as the historical and sociological schools of jurisprudence and of the naturalist school in the form of procedural natural law and the legal enforcement of morality. It explains the concept of a constitution which is basic to any legal system, and clarifies principles of justice and practices at play in the (...) resolution of disputes. This title is written by an Irish academic and is specifically tailored for the Irish student. Includes coverage of: Natural Law; Classical Natural Law; Modern Natural Law; Procedural Natural Law; The Legal Enforcement of Morality; Legal Positivism; Classical Positivism; Modern Positivism; Kelsen; American Legal Theory; Dworkin; Historical Theories of Law; Sociological Theories of Law; Dr Albert Keating is a barrister and senior lecturer in law in Waterford Institute of Technology. a. (shrink)
The Province of Jurisprudence Determined (1832) is a classic of nineteenth-century English jurisprudence, a subject on which Austin had a profound impact. His book is primarily concerned with a meticulous explanation of most of the core concepts of his legal philosophy, including his conception of law, his separation of law and morality, and his theory of sovereignty. Almost a quarter of it consists of an interpretation and defence of the principle of utility. This edition includes the complete and (...) unabridged text of the fifth (1885) and last edition. The comprehensive introduction discusses Austin's life, the main themes of his book, leading criticisms of his ideas, and recent interpretations of his legal philosophy. The edition also includes an up-to-date bibliography and biographical synopses of the principal figures mentioned in the text. (shrink)
One of the main purposes of feminist jurisprudence is to create or find better ways of being and living for women through the analysis, critique, and use of law. Rich work has emerged, and continues to emerge, from feminist theorists exploring conceptions of the self, personhood, identity and subjectivity that could be used to form a basic unit in law and politics. In this article, it is argued that a strong sense of human subjectivity needs to be retained to (...) enable the human potentiality of women and men to flourish. This can be done in a way which is not essentialist, yet does not dissolve the subject out of existence, issues pertinent to feminist jurisprudence in recent years. (shrink)
Jurisprudence is a vast, open-ended, and often daunting subject, particularly because of its links with a variety of other disciplines, such as philosophy, sociologyand political science. The answers given in the text explain the nature and significance of these links and seek to unravel their complexity.
Jurisprudence explores fundamental questions about law and justice from a philosophical and theoretical perspective. Rather than merely describing the field, the book provides rigorous evaluation of jurisprudential arguments and explains in clear, accurate and accessible terms, the complex and cutting-edge debates which define the field of contemporary jurisprudence.
Each of the essays included in this volume illuminates an aspect of law, reflecting an unorthodox perception of jurisprudence which combines interests in philosophy, legal theory, criminology, legal history, political and constitutional theory and the history of ideas. This work will broaden the jurisprudential scope of practitioners' professional concerns, but help academics enhance their knowledge of the wealth of information for their own studies.
This book is the first authoritative text on virtue jurisprudence - the belief that the final end of law is not to maximize preference satisfaction or protect certain rights and privileges, but to promote human flourishing. Scholars of law, philosophy and politics illustrate here the value of the virtue ethics tradition to modern legal theory.
From the reviews of the first edition of Jurisprudence: The Philosophy and Method of the Law (Harvard University Press 1962): A profoundly scholarly, clearly written and thoroughly unpretentious contribution to the literature of jurisprudence.
This important collection of essays includes Professor Hart's first defense of legal positivism; his discussion of the distinctive teaching of American and Scandinavian jurisprudence; an examination of theories of basic human rights and the notion of "social solidarity," and essays on Jhering, Kelsen, Holmes, and Lon Fuller.
Appendices: I. The names of the law.--II. The theory of sovereignty; excursus.--III. The maxims of the law.--IV. The divisions of the law.--V. The territory of the state.--VI. International law.--VII. Authorities.
Discusses primary & elementary principles of law & ethics in the context of jurisprudence. The history of Roman law, common law & American law are discussed as are the distinctions in relation to law & morals between American & English governmental forms.
This edited collection includes chapters by leading jurists on all the main historical and contemporary schools of Western jurisprudence as well as on emerging perspectives such as Critical Race Theory and the influence of psychoanalysis on jurisprudence.
Preparation for the Study of Theories of Law: Non-Universality of Law, Irreconcilable Epistemologies, Ideological Incipience; Theories in Metaphysical-Rational Epistemology: Divine and Prophetic Theories; Natural Law: Early Hindu, Chinese, Greek, Roman, and Modern; Theories in Idealist Epistemology; Theories in Empiricist Epistemology; Positivist: Early Hindu, Chinese, Later Bentham, Austin, Kelsen, Hart; Historical Von Savigny, Maine, Marx and Engels; Sociological Jhering, Ehrlich, Duguit, Jurisprudence of Interests, Free Law; Psychological Petrazycki; American Realist; Philosophical Framework; Expressions; Scandinavian Realist; Phenomenological; The Critical Legal Studies and (...) its Offshoots: Critical Legal Studies, Feminist Jurisprudence, Critical Race Theory; Legal Polycentricity. (shrink)
Providing balanced coverage of abortion, sexual harassment, censorship and pornography, and other timely and controversial subjects, this pathbreaking anthology is the first to offer a comprehensive introduction to feminist legal philosophy. An important resource for courses in women's studies, philosophy, law, sociology, and political science, it provides many stimulating insights into essential topics in jurisprudence, such as the nature and justification of law, judicial reasoning and the process of adjudication, the connection between law and equality, and freedom and justice.
General aspects of jurisprudence -- Precursors of modern jurisprudence -- Natural law -- Transcendental idealism -- Utilitarianism -- Legal positivism -- Historical jurisprudence -- The sociological movement in jurisprudence -- Authority -- Scandinavian realism -- American realism -- Contemporary american jurisprudence -- Rights -- Law and morality -- Feminist jurisprudence.
General aspects of jurisprudence -- Precursors of modern jurisprudence -- Natural law -- Common law and statute -- Utilitarianism -- Punishment -- Legal positivism -- Authority -- American realism -- The nature of law -- Contemporary American jurisprudence and political philosophy -- Rights -- Law and morality.
A collection of brand new and revised essays from eminent scholar of public law, Martin Loughlin, that systematizes his work on political jurisprudence - a school of thought that contends the key to understanding the nature of legal order lies in how political authority is constituted.
The nature and scope of jurisprudence -- Rights and justice -- Law and morality -- Classical and modern natural law -- Classical and modern legal positivism -- Legal realism -- Sociological jurisprudence -- Critical legal studies.
ArgumentThis paper aims at understanding the concept of convention in mechanics as a notion transferred from the field of jurisprudence. This enables us to clarify it as a new epistemic category having a pertinent role in the transformation of mechanics in the nineteenth century. Such understanding permits a separation from linguistic and arbitrary conventions, thus highlighting its epistemic features and not transforming fundamental principles into mere arbitrary agreements. After addressing the main references in the literature discussing the role of (...) convention in mechanics, we analyze its classical use as a concept originating from law. Then we explain its use by Carl G. Jacobi, Ferdinand F. Reech, and J. Henri Poincaré. Here we also show how their uses conform to the features analyzed regarding conventions in jurisprudence. Finally, we try to explain how the use of this concept, among other factors, contributed to the transformation of mechanics. (shrink)
Nowhere has H.L.A. Hart's influence on philosophical jurisprudence in the English-speaking world been greater than in the way its fundamental project and method are conceived by its practitioners. Disagreements abound, of course. Philosophers debate the extent to which jurisprudence can or should proceed without appeal to moral or other values. They disagree about which participant perspective—that of the judge, lawyer, citizen, or “bad man”—is primary and about what taking up the participant perspective commits the theorist to. However, virtually (...) unchallenged is the view that jurisprudence is fundamentally interpretive or “hermeneutic”; that it takes for its subject a certain kind of social practice, constituted by the behavior and understandings of its participants; that its task is to explain this practice and its relations to other important social practices; and that it can properly be explained only by taking full account of participant understandings. It is, perhaps, some measure of the hegemony of Hart's influence that Ronald Dworkin mounts his fundamental challenge to Hart's positivism squarely from within this jurisprudential orthodoxy. Dworkin may have exceeded the limits of the method as Hart conceived it, but, as Stephen Perry has argued, “the seeds of Dworkin's strong version of inter-pretivism were sown by Hart himself.”. (shrink)
The aim of this article is to describe and defend jurisprudence as an enterprise of theorising about law that is distinct from what is now understood as legal philosophy in the Anglophone world. Jurisprudence must draw on legal philosophy but also from many other resources. It should be an open quest for juristically significant insights about law. Its purpose is to inform and guide the juristic task of making organised social regulation a valuable practice, rooted and effective in (...) the specific contexts and historical conditions in which it exists but also aimed at serving demands for justice and security through regulation, as these perennial values are understood in their time and place, and as they might be further clarified and reconciled as legal ideals. (shrink)
A textbook written mainly for final year law students taking Jurisprudence at an African university, but that would also be of use to those in a political philosophy course. It includes primary sources from both the Western and African philosophical traditions, and addresses these central questions: what is the nature of law?; how should judges interpret the law?; is it possible for judges to be objective when they adjudicate?; how could the law justly allocate liberty and property?; who is (...) owed duties of justice or moral treatment more generally?; who is obligated to advance justice, say, by aiding others?; how should wrongful harm be compensated?; why and when should lawbreakers be punished? (shrink)
This new book takes an innovative and novel approach to the study of jurisprudence. Drawing together a range of specialists, making original contributions, it provides a summary, analysis, and critique of basic themes in, and major contributions to, the study of jurisprudence. The book explores issues and ideas in jurisprudence in a way that integrates them with legal study more broadly, avoiding the tendency in recent years for the subject to become overly inward-looking, specialist and technical, leaving (...) students and the subject adrift. It picks up mid-range concepts such as rights, sovereignty, and adjudication and charts their interrelation and uses in law and legal theory. The approach taken to the subject is an interdisciplinary one, and involves making linkages with contemporary issues in political and social theory, such as the changing role of the state, forms of dispute resolution and the courts. It also addresses topics not normally covered, or covered only indirectly in other jurisprudence textbooks, such as globalisation and legal culture. Its coverage is therefore broad and links legal, political, philosophical, and social analysis. (shrink)
This essay attempts to provide an accessible introduction to the topic area of conceptual analysis of legal concepts and its methodology. I attempt to explain, at a fairly foundational level, what conceptual analysis is, how it is done and why it is important in theorizing about the law. I also attempt to explain how conceptual analysis is related to other areas in philosophy, such as metaphysics and epistemology. Next, I explain the enterprise of conceptual jurisprudence, as concerned to provide (...) an account of those properties that distinguish things that are law from things that are not law which constitute the former things as law, illustrating this explanation with what I hope are intuitive examples. Three different methodological approaches are also explained and evaluated. Finally, the practical importance of conceptual jurisprudence is discussed. (shrink)
This textbook presents a clear exploration of the historical developments and ideas that give modern thinking its distinctive shape. It guides students through the rival standpoints on jurisprudence from the origins of Western jurisprudential thought and the classical tradition to the emergence of 'modern' political thought. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis lead the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that (...) result in a fresh and original perspective on the subject. The third edition includes a new chapter on feminist legal scholarship and non-Western approaches. Praise for the previous editions: 'An ideal starting place for anyone interested in, or studying, legal philosophy... Its simple but ambitious aim to provide a concise and accessible guide is easily achieved.' 'A decent choice for an introductory course on jurisprudence, or for a serious student who wishes to study on his or her own.'. (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)
Features collected extracts from key texts in jurisprudence, with commentary. These discuss the nature of law, and modern attempts to find an acceptable theory of justice. The book is intended for students of law.
This book is designed for use in courses in law schools and university departments of philosophy. It can serve as a text for basic and advanced courses and seminars. Readings include excerpts of classic works of Aristotle, Aquinas, Locke, Hobbes, Kant, Bentham, and Austin. Provided also are excerpts from standard works of twentieth century philosophers. The book explores current legal discourse with readings on topics such as sociobiology, Islamic law, the legal process school, legal feminism, critical legal studies, intersectionality and (...) gender identity theories, law and economics, and new private law theories. It reprints leading cases on natural rights/human rights and readings from online blogs, op-ed essays, news stories and internet publications, as well as drawing on literary treatment of topics relevant to legal philosophy. (shrink)