This article is aimed at representing the approaches of legal theory to the interaction between law and politics and to depict the main national features of the relationship between law and politics. The analysis is based on the adoption of methodology of fundamental work of Mauro Zamboni “Law and Politics”. The adoption of methodology was used only partially, while seeking to identify and clarify the features of static, dynamic and epistemological aspects of the relationship of (...) law and politics in Lithuania. Researchers have faced the problem of a diverse approach to the definitions of law and politics, and it has been resolved by focusing only to the researches representing the standpoint of legal theories. The analysis has led to the findings that there are reasonable grounds to assume that legal content (referring to the “static” aspect of law and politics) in Lithuania is flexible to outgoing politics. This implication is based on 1) the noticeable disproportion of legal regulation in different areas of social life, 2) law-making priority areas determined mostly by the choice of political actors will and 3) through changed execution of legal norms, prefering the forms which could be more cost effective (alternative dispute resolutions) and more suitable for changing social environment. What concerns the “dynamic” aspect of the relation between law and politics, it is implicated that there are backings for both open and closed law making, but at the same time more open legislative features are observed than the closed ones. This tendency is identified in the legislative process, where the help out of non-legal world is applied (using sociology) and the persistence of politicians to access and use the institutes of citizens’ legislative initiative (iniciatives for referendums or other legislative initiatives, the right to petition, etc.) is obvious. The reflection of „epistemological“ aspect of the relationship between law and politics in Lithuanian legal discipline reflects the general trend of international scientific community of law. It is considered to step back from the autonomous legal discipline concepts and in this way the appropriate conditions for incorporation of different categories from other scientific fields are created. On the other hand, a reserved cautious attitude of both researchers and research institutions on the conjunction of law and political science is observed. The interaction between law and economics and business or public relations is still prioritized. (shrink)

In the past twenty years Joseph Raz has consolidated his reputation as one of the most acute, inventive, and energetic scholars currently at work in analytic moral and political theory. This new collection of essays forms a representative selection of his most significant contributions to a number of important debates, including the extent of political duty and obligation, and the issue of self-determination. He also examines aspects of the common (and ancient) theme of the relations between law and morality. (...) This volume of essays, available in one volume for the first time, will be essential to legal philosophers and political theorists. (shrink)

This article aims to provide a semiotic analysis of environmental law and youth protests. More precisely, drawing on speech act theory this article regards both as types of communication and teases out the inherent voice and message, specifically with regard to the interests of future generations. The argument unfolds in three steps. First, the article looks into speaker and speech of environmental law and argues that it speaks, as legislation does, in the first-person plural voice of a ‘we’. Second, the (...) article examines a speech of Greta Thunberg through the lens of Stanley Cavell’s theory of passionate utterances. This interpretation will unlock the political stakes of Thunberg’s speech as she claims standing with those responsible for enacting environmental law. Finally, the consequences of this reading will be analysed by relating message and voice of environmental law. As youth protests question ordinary forms of political representation, new ways of safeguarding the interests of future generations are called upon. (shrink)

The article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post-Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's (...) theoretical approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us. (shrink)

At a time of unprecedented migration and social displacement, following a century ravaged by war and hegemonic shift, the question of hospitality presents itself with unparalleled urgency. Taking his cue from Immanuel Kant’s cosmopolitics, Jacques Derrida addressed this question by deliberating on the nature of the political obligation to the other person. Invoking the work of Emmanuel Levinas, this demand is first of all ethical, and unconditional. But Derrida was also acutely aware of the residual violence of the hospitable gesture, (...) which always takes place in a scene of power. The resultant aporias at the heart of hospitality provoked debate between the two authors at the 2007 Critical Legal Conference, and this paper seeks to elucidate and elaborate on this encounter. At stake are the matters of the potential political forms of hospitality, whether it should always been striven for and, ultimately, how one can conceptually reconcile its ethics with its violence. (shrink)

The 1973 archeological discovery of important documents of classical thought known as the Huang-Lao Boshu coupled with advancements in contemporary jurisprudence make possible a reassessment of the philosophies of pre-Qin and early Han China. This study attempts to elucidate the importance of the Huang-Lao school within the intellectual tradition of China through a comparison of the Boshu's philosophical position, particularly its understanding of the relation between law and morality, with the respective views of major thinkers of the period--Confucius, (...) Han Fei, Lao Zi, Zhuang Zi, and to a lesser extent, Shen Dao, Shen Buhai and the authors of the Guan Zi and He Guan Zi. So doing reveals Huang-Lao to be a unique and sophisticated social and political philosophy which, until its expulsion from court by Emperor Wu and subsequent adoption by Daoist religion, served as the ideological foundation for the post-Qin reforms of the early Han. (shrink)

Book synopsis: This volume brings together international scholars working at the intersection of Spinoza studies and critical and feminist philosophy. It is the first book-length study dedicated to the re-reading of Spinoza’s ethical and theologico-political works from a feminist perspective. The twelve outstanding chapters range over the entire field of Spinoza’s writings—metaphysical, political, theological, ethical, and psychological—drawing out the ways in which his philosophy presents a rich resource for the reconceptualization of friendship, sexuality, politics, and ethics in contemporary life. (...) The clear and accessible Introduction offers a historical sketch of Spinoza’s life and intellectual context and indicates how Spinoza’s philosophy might be seen as a rich cultural resource today. Topics treated here include the mind-body problem and its relation to the sex-gender distinction; relational autonomy; the nature of love and friendship; sexuality and normative morality; free will and determinism and their relation to Christian theology; imagination and recognition between the sexes; emotion and the body; and power, imagination, and political sovereignty. The essays engage in a rich and challenging conversation that opens new paths for feminist research. (shrink)

This article presents the dual conception of legal regulation of funding of political parties. In general, funding of political parties is considered as part of public law, however, this article explains that it also could be understood as an institute of private law. When funding of political parties is analysed not only through the conception of public law, but also taking into consideration the idea of private law, it is possible to apply different (than usual) principles of legal regulation of (...) such relations. Those principles are followed in this article in order to reveal different practical problems pertaining to legal regulation of political party funding. A conclusion is made that the legal provisions on funding of political parties form an integral system that consists of both public law and private law provisions. The relations when natural and legal persons assign property to political parties are considered as part of private law and those property relations that are based on state subsidies to political parties or other financial support by the state are the object of public law regulation. In the case of Lithuania, all such relations are regulated by the Law on Funding of, and Control Over Funding of Political Parties and Political Campaigns, which is an act of private law and also a source of public law. The legal regulation that stems from this law is supplemented by the Civil Code of the Republic of Lithuania and other related laws. The legislator, while regulating the legal relations pertaining to the funding of political parties, and the courts, when dealing with disputes related to those relations, are advised to take into consideration the general principles of civil law. It is important to point out that some legal provisions of the Law on Funding of Political Parties that are in force as of 1 January 2012 are against those principles. A prohibition for legal persons and limitations for natural persons to fund political parties should be critically considered, since those restrictions limit the possibilities for private persons to dispose their property and for political parties – to acquire it. Moreover, it is important to point out that such restrictions can be circumvented by assigning property through a third party and by other legal means. In order to avoid such cases, it is recommended to provide an opportunity for natural and legal persons to fund political parties, but with reasonable limitations for such donations. (shrink)

New Critical Legal Thinking articulates the emergence of a stream of critical legal theory which is directly concerned with the relation between law and the political. The early critical legal studies claim that all law is politics is displaced with a different and more nuanced theoretical arsenal. Combining grand theory with a concern for grounded political interventions, the various contributors to this book draw on political theorists and continental philosophers in order to engage with current legal problematics, (...) such as the recent global economic crisis, the Arab spring and the emergence of biopolitics. The contributions instantiate the claim that a new and radical political legal scholarship has come into being: one which critically interrogates and intervenes in the contemporary relationship between law and power. (shrink)

This essay is an attempt to understand the significance of Barth's redefinition of the "law/gospel" rubric for political theology. Barth's thought is exposited at length, and illumined by comparison with Luther and Calvin. Luther emphasizes the distance between gospel and the law, distinguishing between serving God in the secular regiment, and serving Christ in the spiritual regiment. He thereby challenges the improper relation of state and church, but does so in a manner that can lead to a (...) passive dualism. Calvin holds that preaching the law to the state includes preaching the gospel; thus, the church has a positive vision against which it can evaluate the state's service to God in Christ. This leads, however, to the danger of a 'clerical guardianship' of the state. Barth finds a positive connection between the two governments in the fact that both communities are based in Christ, in whom the gospel is their law. This grounds his high view of the state as predecessor to the heavenly kingdom, as well as a prophetic mission of the church to the state. This does not lead to a new Christendom, however, first, because Barth hopes not for a kingdom wrought by human hands, but for the Theocracy of God, and second, because Barth sees the fallen reality of both church and state, the state pagan and violent, and the church a poor witness. In the end, though Barth makes a strong case for supporting theological critique of the state, while avoiding Constantinianism, he is unable to solve the problem of how to connect the gospel and the law in the civil community. (shrink)

Ratna Kapur’s recent book entitled Erotic Justice proposes a new politics of postcolonialism whereby the sexual subaltern disrupts the normative principles of the universal, liberal, legal domain. Kapur traces legal strategies regarding censorship, sex-work, homosexuality, sexual harassment, trafficking and migration which travel a treacherous path, countering allegations of ‘unIndian’ and Western practice with cultural histories of ‘authentic’ sexual legitimacies, towards a new politics of desire. Kapur frames her analysis through postcolonial feminist theory as providing a tool for feminist (...) struggle, yet distinct from and disruptive of a liberal project of global sisterhood. This review deeply values the role of the sexual subaltern which disrupts the tenets of a linear, progressive liberalism. Drawing upon Indian feminist and Western feminist perspectives, the review considers how the distinct position of the postcolonial sexual subaltern subject informs the generic role of law as a tool constructing relations of domination regarding gender, sexuality, caste, property and religion. Kapur observes that both the West and the Hindu Right have engaged with liberal legal principles. This engagement, I argue, exposes and informs law as a historical and contemporary tool of gendered legal colonialism, for sisters to disrupt across the Western and Eastern terrains. (shrink)

Ernst-Wolfgang Böckenförde is one of Europe's foremost legal scholars and political thinkers. As a scholar of constitutional law and a judge on Germany's Federal Constitutional Court, Böckenförde has been a major contributor to contemporary debates in legal and political theory, to the conceptual framework of the modern state and its presuppositions, and to contested political issues such as the rights of the enemies of the state, the constitutional status of the state of emergency, citizenship rights, and challenges of European integration. (...) His writings have shaped not only academic but also wider public debates from the 1950s to the present, to an extent that few European scholars can match. As a federal constitutional judge and thus holder of one the most important and most trusted public offices, Böckenförde has influenced the way in which academics and citizens think about law and politics. During his tenure as a member of the Second Senate of the Federal Constitutional Court, several path-breaking decisions for the Federal Republic of Germany were handed down, including decisions pertaining to the deployment of missiles, the law on political parties, the regulation of abortion, and the process of European integration. In the first representative edition in English of Böckenförde's writings, this volume brings together his essays on constitutional and political theory. The volume is organized in four sections, focusing respectively on the political theory of the state; constitutional theory; constitutional norms and fundamental rights; and the relation between state, citizenship, and political autonomy. Each of these four cornerstones of Böckenförde's legal and political thinking features introductions to the articles as well as a running editorial commentary to the work. A second volume will follow this collection, focusing on the relation between religion, law, and democracy. (shrink)

The studies in this 1996 volume consider Hegel's mature views on ethics and politics and relate them to the classical tradition of Western political thought. Manfred Tiedel brings to the analysis of Hegel's views a high level of scholarship and a thorough knowledge of earlier thinkers. Concentrating on the Philosophy of Right, he reveals connections which clarify Hegel's understanding of his relationship with his predecessors and of the transformation of political philosophy which Hegel wanted to effect. In doing so, (...) he throws much needed light on the structure of Hegel's work and on many of its more obscure doctrines concerning natural law, political economy, civil society and the state. Professor Riedel's work is highly regarded in Germany. The translation of these essays will provide a valuable counterpart to the approach of most English-speaking scholars and will help significantly to extend the understanding and appreciation of Hegel's political philosophy. (shrink)

The Hannah Arendt Bluecher Literary Trust has granted permission to Social Research to publish for the first time a lecture given by Arendt in 1953, the provenance of which is her so-called Marx manuscripts. The lecture here entitled "The Great Tradition" has been divided into two parts, the first of which, subtitled "Law and Power," appears in the current issue, and the second, subtitled "Ruling and Being Ruled," will appear in the next issue. The Marx manuscripts, as they go on, (...) have less and less to do with Karl Marx, but even when, as here, he is not named or his thought directly addressed, he remains, in one important respect, in the background. In the first part of "The Great Tradition" the relation between law and power, and in the second part the conception of government as ruling and being ruled, are analyzed by Arendt as fundamental elements in the tradition of political thought; what the reader needs to be aware of , is that the lasting importance of Marx to Arendt is his having brought the tradition to its end by returning it to its beginning. The tradition began when Plato replaced action with philosophy, and ended when Marx transformed philosophy into action. In both its beginning and its end—and this is why Marx himself remains within the tradition—the pre-philosophic and perhaps antiphilosophic experience of freedom in action, Arendt's primary political concern, is missing. (shrink)

International relations (IR) is both a science and an art, i.e. the unity of object and subject. Traditional international relations theories (IRT) have probed the laws of IR, in an attempt to become the universal science. IRT have developed into a class doctrine that defends the legitimacy of the western international system as a result of proceeding from the reality of IR, while neglecting its evolving process, and overlooking the meaning of art and the presence of multi-international systems. In other (...) words, IRT have turned into what Karl Marx might have deemed as the vulgar international relations theories (VIRT). For this reason, we declare the end of international relations theories. This phenomenon can only be negated by the so-called Chinese School, which will set the sustainable and harmonious relations among nations, between state and non-state actors, and within states and non-state actors (in one word ) in five life-forces of economy, politics, military, culture, and religion. Consequently, this will bring about a real regression of nationality and compatible development of various international systems. (shrink)

The author's thesis is that there is a conceptually necessary connection between law and morality which means legal positivism must fail as a comprehensive theory. The substantiation of this thesis takes place within a conceptual framework which shows that there are at least 64 theses to be distinguished, concerning the relationship of law and morality. The basis for the author's argument in favour of a necessary connection, is formed by the thesis that individual legal norms and decisions as well (...) as whole legal systems necessarily make a claim to correctness. The explication of this claim within the frame of discourse theory shows that the law has a conceptually necessary, ideal dimension, which connects law with a procedural, universalistic morality. (shrink)

This work, translated from the German, is divided into nine chapters with a preface plus a very helpful introduction by the translator. There is also a postscript by Habermas, as well as a reprinting of two earlier papers on related topics. The book is intended as a contribution to contemporary political philosophy, and, as such, Habermas accepts certain assumptions in advance and does not attempt to argue for them at any length. The first is the “linguistic turn” in philosophy, the (...) antirealist view that all knowledge is in some sense constructed by human culture and language. The second is the failure of natural law theory. Hence, his task is to engage in political philosophy in a “post-metaphysical age,” an age which requires a “procedural reason... that puts itself on trial”. Against this background, the political philosopher must avoid the twin pitfalls of subordinating law to a transcendentally grounded morality and of identifying law with a particular tradition’s view of the good life. (shrink)

I will argue here that Einaudi's thought reveals an awareness that the question of freedom has to do with two inter-related problems: the relation of individuals or communities with their respective limits and the question of going beyond these limits. Limits are to be understood here in the meaning of the foundation or conditions of possibility both of institutions (economic, political and juridical) and of thought and human action.

Knowledge of the structure of the cosmos, Plato suggests, is important in organizing a human community which aims at happiness. This book investigates this theme in Plato's later works, the Timaeus, Statesman, and Laws. Dominic J. O'Meara proposes fresh readings of these texts, starting from the religious festivals and technical and artistic skills in the context of which Plato elaborates his cosmological and political theories, for example the Greek architect's use of models as applied by Plato in describing the making (...) of the world. O'Meara gives an account of the model of which Plato's world is an image; of the mathematics used in producing the world; and of the relation between the cosmic model and the political science and legislation involved in designing a model state in the Laws. Non-specialist scholars and students will be able to access and profit from the book. (shrink)

Hart’s criticism of Devlin’s stance on the legal enforcement of morality has been highly influential in shaping a new liberal sensibility and in paving the way to many important legal reforms in the UK. After 50 years it is perhaps time to go back to Law, Liberty and Morality to see it in the perspective of the general evolution of Hart’s thought since the early 50s. This is a period of extraordinary creativity for the Oxford philosopher, in which he writes (...) many important contributions to legal, moral and political philosophy. Prominent among these is ‘Are There Any Natural Rights?’, an article that sets the agenda for Hart’s subsequent work on liberty, fairness and rights, and provides the philosophical background for the liberal understanding of the relations between law and morality defended in Law, Liberty and Morality. (shrink)

The nature and relationships between Law and State -- Law making, its sources and the role of State -- Law, legal systems, and legal families : synchronizing in the Globalized World -- Fundamental legal concepts : the distinctive features of law -- Constitutional law : the Supreme Law of the land -- Criminal law : State's authority in defining and penalizing crimes -- Torts : making people responsible & civilized -- Civil law and proceedings : public and private law (...) -- Law for doing business : the role of state and market -- Justice : the goal of political society -- The Rule of Law : foundation of modern political society -- Human rights and the state : grounds for personal and institutional relationships -- International trade : the centerpiece of growth and international relations -- Law, Globalization and international relations. (shrink)

Political philosophy and natural science -- Political and psychological preconditions to recovering Socratic science -- The rediscovery of Socratic dialectic: Strauss on Schmitt's concept of the political 2. the fundamental political predicament: Strauss on Plato's laws, book III -- The origin and nature of philosophy -- The natural frame of reference and the possibility of a comprehensive science -- Natural right and history (ch. III) on the origin and nature of philosophy -- Divine revelation and the possibility of science -- (...) Strauss's introduction to Platonic studies in modern times -- Philosophy and revelation -- The foundations and directions of modern philosophy and science -- Science and politics in Strauss's natural right course -- An irony beyond Machiavelli's irony: a reading of the concluding six paragraphs of thoughts on Machiavelli. (shrink)

This essay argues that a restatement of Thomistic natural law reasoning is increasingly necessary in jurisprudential debate about international law. Mindful of Pope John Paul II's call for a renewal of international law, the essay engages with the present-day tension between Morgenthau-type realism and neo-Kantian discourse-oriented cosmopolitanism. The essay addresses whether the former is sufficiently realistic in our global 21st century context, and whether the latter is adequately cosmopolitan. Attention is drawn to Aquinas's understanding of the relation (...) class='Hi'>between custom, consent and political authority in order to expose some of the limits of present-day statism, and to suggest that Thomistic natural law reasoning is, potentially at least, better able to cope with the intractable disagreement that characterises 21st century global relations than some forms of neo-Kantian jurisprudence. (shrink)

This paper describes the different dimensions of the relation between moral reflection and legislative processes. It discusses some examples of the institutionalisation of moral reflection. It is argued that the relation between ethics and law is still an actual and relevant question. Ethics also has to reflect on its own role in political life. The paper defends the relevance of a theological perspective on the relation between law and ethics. In the last part it (...) is argued that the modality of relation between ethics and law depends on the specific character of social domain. (shrink)

In his 1935 treatise on divine sovereignty, the Jewish philosopher Martin Buber introduced the idea of an 'anarchic soul of theocracy.' A decade before, the German jurist Carl Schmitt had coined the term 'political theology' in order to designate the Christian theological foundations of modern sovereignty and legal order. In a specular and opposite gesture, Buber argued that the covenant at Sinai established YHWH as the King of the Israelites and simultaneously promulgated the principle that no human being could become (...) sovereign over this people. In so doing, Buber offered an interpretation of Jewish theocracy that is both republican and anarchic. Republican because, by pivoting on the idea that democracy is a function of a people's fidelity to a prophetic higher law, theocracy displaces the central role of the human sovereign. Anarchic because this divine law is saturated with the messianic aim to put an end to relations of domination between peoples. In this book I show that this republican and anarchic articulation of the discourse of political theology characterises the development of Jewish political theology in the 20th century from Hermann Cohen to Hannah Arendt. (shrink)

One of the main themes of Bobbio’s writings was the relationship between law and politics. Yet an ambiguity runs through his writings on this point. He saw politics and law as intimately related, with the one entailed by the other. Yet, the tautologous relationship he saw as existing between the two posed a potential problem – what could be called the Hobbes challenge. For if politics is impossible without law, yet all law flows from (...) class='Hi'>politics, then we seem faced with a dilemma of either a vicious circle or an infinite regress. Bobbio never really confronted this dilemma, although in a bid to escape the prospect of the Hobbesian lawless sovereign he gestured towards a natural law solution at odds with his legal positivism. Instead, this article suggests an alternative in precisely the non-sovereign account of politics Hobbes criticized, that of a republican democracy based on political equality rather than popular sovereignty. In this account, the rule of law can be reconciled with the rule of persons precisely because men must rule together as rulers and ruled in turn, rather than any one or group of them permanently ruling over the others. Law on this account results from a particular type of politics. (shrink)

Consequences of world-scale anti-terrorism campaign (which included pre-emptive and coercive regime changes in Afghanistan and Iraq) equaled to or even exceeded consequences of the terrorist challenge itself, and must be analyzed as dialectically interfaced dual factor influencing international politics and law. This dual factor changes basic rules of international relations through wider employment of the principle of pre-emption (retaliation against perceived intentions, rather than against actions), and further blurring of national sovereignty resulting from more coercive interference of the international (...) community into domestic affairs of certain states and societies. Counter-terrorism is philosophically interpreted internationally as reestablishment and strengthening of the monopoly of a state onto use of force, while terrorism is accused for illegal use of force “for private political purposes”. Counter-terrorist practices return previously missing severe coercive sanctions in the international law, and are implemented on behalf of the international community. The problem is to assure both legality and legitimacy of applied measures, especially in situation when major world powers’ interests are split in elaboration of the UN SC decisions authorizing the internationalinterference into sovereign affairs of states. In fact, the very field of counter-terrorism becomes a field for projection and juxtaposing pragmatic interests of world powers. Classical contradiction between international law based on values and principles and pragmatic politics based on interests re-emerges in the area of terrorist challenges/antiterrorist responses. Counter-terrorist practices require as much legal regulation as do terrorist challenges themselves. (shrink)

This book offers a radical new understanding of law, beyond the confines of its formalization by the state. The book takes off from the late work of Gilles Deleuze and Michel Foucault, for whom law and its institutions came to be liberated from an ideological perspective that had treated them as sterile instruments for the reproduction of domination. Engaging its continental history, it addresses the concept of law, not merely as a 'command', but as the result of a much more (...) complex legal operation aimed at dynamically stabilizing the social relations of a community. The book thus sidesteps the usual legal-political focus on those - from Hobbes to Schmitt - who have contributed to the categorical scheme of the modern state, and with it questions of political representation, sovereignty, the rigid distinction between public law and private law, and so on, as it pursues an alternative theoretical trajectory through Ravaisson, Tarde, and Hauriou. Politics, the book maintains, can be no longer be treated simply through the state form. And, relatedly, the law must be seen as a living law: a law that cannot be treated exclusively in formal terms, but must be taken as a grammar capable of articulating a politics of process, relationality, and innovation. Reconceived as such, law can then circumvent the aporias that arise when society is viewed as a private company, and the state seen as the bearer of the only possible means of formalizing its relationships. At the intersection of law and political theory, this book will speak to scholars and others with interests in both these areas, and especially those concerned with the limits of both conventional and critical approaches to law. (shrink)

Rare is the scholarship that does not somewhere refer to Hobbes's philosophy as a system, but nowhere does Hobbes refer to his philosophy by this term. Since Hobbes in most recognized for his moral and political philosophy, and since the interpretation of his moral and political concepts varies with the variety of views about the systematic relationship between his political and natural philosophy, the issue of system is the most crucial in Hobbes interpretation. ;The standard interpretation is that Hobbes's (...) anthropology is the direct logical result of his mechanistic materialism, that his thoroughly modern moral and political philosophy is the logical consequence of that anthropology. Taylor and Strauss for different reasons denied a systematic relationship between Hobbes's political and natural philosophy, thus ushering in almost fifty years of Hobbes research following their insights, as well as a new generation of scholars who sought to render Hobbes's philosophy systematic by finding in his works new principles of systematization. But as late as 1982, even Willms noted that a comprehensive book on system had not yet emerged. ;This dissertation attempts to show that Hobbes's political philosophy is demonstrative, as he intended it to be, only if it is based upon his natural philosophy. Chapter one traces the history of the system concept to the Seventeenth Century to find an historically accurate operational description of system against which to view Hobbes's philosophy. Chapter Two spells out the systematicity in Hobbes's philosophy and shows how the formal concept of system developed in Chapter One applies accurately to Hobbes's philosophy. Chapter Three confirms the view of Hobbes's system established in Chapter Two by showing that Hobbes's view of Aristotle depends upon his own view of philosophic system. Chapter Four argues that Hobbes did intend a system in which the political philosophy depends upon the natural and that, as a result, Hobbes's moral and political concepts, particularly natural right and natural law, are not "moral" in any traditionally recognized sense. (shrink)

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the (...) efforts of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

The definition and measurement of the impact of laws and courts is a subject of disagreement and uncertainties. In this article, law is understood as a public, general, and binding command enforceable through state coercion. Assessments on the effects of laws on democracy and development focus on changes in specific social indicators. The evaluation of impact relates to the availability and reliability of judicial statistics and the impact of laws depends on political and social conditions. The interaction of laws can (...) be studied in three contextual variables: the structure and competitiveness of political systems, the structure and performance of the judiciary, and the organizational endowments of the social or political actors, such as social and labor movements that use the law. This interaction shows how and why certain conditions affect impact. It also speculates, about some additional developments that might follow from the relationships between law and these three variables. (shrink)

This volume is one of the most remarkable works in the history of economic thought. First published in 1893, its principal significance rests in its argument that economic theory, however technical or pragmatic, is necessarily formed by and derives its meaning from larger moral and philosophical systems and assumptions. Bonar traces the inexorable presence of this moral and philosophical element in a vast, though highly nuanced, survey of the economic aspect of major thinkers from Plato to Darwin and demonstrates how (...) modern economic thought, in turn, grew out of one or another branch of philosophy. Bonar begins with a consideration of Plato and Aristotle, examining their conceptions of wealth, production and distribution, and civil society. Discussions of the Stoics, Epicurians, and early Christianity explore complications introduced by these bodies of thought. His analysis of the classical and medieval world is followed by an extensive treatment of the concept of natural law, from the Renaissance through the Enlightenment, describing its influence and its relation to ideas of natural rights. The book's later sections concentrate on the dominant modes of ninteenth-cen-tury thought: utilitarianism, idealism, and materialism. Bonar identifies and explores the philosophical topics on which the conduct of technical economic analysis makes assumptions: human nature and human wants, the nature and role of the state, the relation of the individual to society, the nature and origin of property, and the role of ideals in socioeconomic life. He concludes by examining the implications for economics of the theory of evolution arising from the work of Darwin and others. The continuing interest of this volume for economists, philosophers, and sociologists lies in Bonar's contention that at the heart of the relationship of philosophy to economics is the problem of order: the ongoing need to reconcile conflicts between freedom and control, continuity and change, hierarchy and equality. In his reading, the fundamental question to which philosophy and economics are both brought to bear is that of changing the structure of power and opportunity in the social economy. This is, in short, a classic in the history of economics as well as the economic element in intellectual history. (shrink)

In this major new assessment of Hannah Arendt's writings on International Relations Patricia Owens provides a compelling case for Arendt's continued relevance to debates about suicide bombing; genocide; the ethics of war; civilian casualties; and the dangers of lies and hypocrisy in wartime.

In this exploration into the close relation between terror and law, I attempt first to show that the relation between terror and law is not a simple question of relating violence to law, but to the very process of constitution making. Second, laws relating to terror may or may not find a formal place in the constitution, but this relation is essential to the working of the basic law, of the foundational concept of the rule (...) of law. Third, intelligence gathering occupies a key place in this relation, and this activity, which has no mention in the constitution almost anywhere in the world, is the fulcrum on which reasons of state stand. Fourth, intelligence is the close monitoring of human movement, of the body, of the physical activities, and in this physical form of politics we have the meeting of the body and reasoning, terror and constitution, violence and law. And finally, the article describes a specifically Indian experience; yet may have larger significance in terms of retrieving the history of constitution making. (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

The problem of the nature of values and the relation between values and rationality is one of the defining issues of twentieth-century thought and Max Weber was one of the defining figures in the debate. In this book, Turner and Factor consider the development of the dispute over Max Weber's contribution to this discourse, by showing how Weber's views have been used, revised and adapted in new contexts. The story of the dispute is itself fascinating, for it cuts (...) across the major political and intellectual currents of the twentieth century, from positivism, pragmatism and value-free social science, through the philosophy of Jaspers and Heidegger, to Critical Theory and the revival of Natural Right and Natural Law. As Weber's ideas were imported to Britain and America, they found new formulations and new adherents and critics and became absorbed into different traditions and new issues. This book was first published in 1984. (shrink)

This paper is intended to be a summary of the author's views on the relationship between law and morality worked out over the past three decades in jurisprudence. The paper preliminarily clarifies the matter by isolating some lines of cleavage separating different questions askable about this relationship. With this done, the author argues for two theses. One, that judges are obligated to use morality in their decisions in particular cases; and two, that the morality judges are obligated to use (...) in their judicial reasonings, is best seen as the natural lawyer sees it, namely, as being part of the law that obligates judges in their role as judges. The author not only believes these theses to be true; he also thinks that these theses are practically important, in that their acceptance by judges makes for better judging. (shrink)

Institutional and political developments since the end of the Cold War have led to a revival of public interest in, and anxiety about, international law. Liberal international law is appealed to as offering a means of constraining power and as representing universal values. This book brings together scholars who draw on jurisprudence, philosophy, legal history and political theory to analyse the stakes of this turn towards international law. Contributors explore the history of relations between international law and those it (...) defines as other - other traditions, other logics, other forces, and other groups. They explore the archive of international law as a record of attempts by scholars, bureaucrats, decision-makers and legal professionals to think about what happens to law at the limits of modern political organisation. The result is a rich array of responses to the question of what it means to speak and write about international law in our time. (shrink)

This chapter examines the modern republican tradition and how thinkers from Niccolò Machiavelli to the authors of The Federalist conceived of the relationship and inevitable tensions between law and politics. It first provides an overview of the modern republican tradition, the various theoretical strands within it and contemporary modern neo-republicanism. It then proceeds with a discussion of how modern republicans thematise the relationship between law and politics, along with the ideas of contemporary neo-republican thinkers about the (...) modern republican tradition. It also considers the research program initiated by the studies of Philip Pettit and Quentin Skinner, namely, Republicanism: A Theory of Freedom and Government and Liberty before Liberalism, respectively. The chapter concludes by proposing a republican political theory that addresses the reality of pluralism and highlights points of conflict. (shrink)

ArgumentThis article describes how science and law were called upon (and failed) to resolve a controversy that created a painful rift between the Israeli State and some of its elite soldiers. The controversy, which came to be known as “the Kishon affair,” erupted in 2000, when veterans of an elite and secretive unit in the Israeli navy claimed that pollution in the Kishon River where they had trained and dived during their military service had been the cause of a (...) rash of cancers. The veterans demanded that the Ministry of Defense take responsibility for their illnesses, finance their medical treatment, and support their families if they die. The military denied the causal connection between the polluted river and the veterans’ cancers and rejected their demands. The dispute quickly escalated into a bitter public controversy, and a high-rank commission comprised of one of Israel's top jurists and two prominent scientists was called upon to study the disputed causal relation and reveal its true nature. However, after nearly three years of intense inquiry the jurist and the scientists reached opposing conclusions: the jurist found a causal connection while the scientists rejected it. (shrink)

Hans Kelsen refused to develop a democratic theory of the basic norm. Given that he expounded a strong distinction between law and politics as two separate scientific disciplines he consistently argued against any attempt to politicize legal science and corrupt its object of cognition. As a result, there has been very little discussion of the basic norm in relation to his democratic theory. This article attempts to fill this gap by tracing the relationship between the basic (...) norm and democracy in Kelsen’s legal and political writings. More precisely, it maps Kelsen’s seminal distinction between autonomy and heteronomy onto his reflections on constitutional making and probes the anti-democratic implications of his theory of the basic norm as they undermine the normative foundations of democratic theory. The article concludes by addressing the question of whether it is possible to articulate a theory of the democratic ground norm, of democratic foundings with a normative content, by proposing the idea of an immanent, performative basic norm as the source of validity of a democratic constitutional order. (shrink)

Massimo Campanini offers a new translation of Averroes's Fasl Al Maqal from the Arabic original, preceded by a substantial introduction to the text. The introduction, a kind of interpretative essay, attempts to clarify Ibn Rushd's position on the relation between philosophy and religion, the genre to which the Fasl belongs and the format it utilizes, while also offering a fully blown and intriguing outline of the political, theological, cultural, and ideological debates in Andalusia during the Almohadic period. A (...) large part of the 55 pages of this informative essay is dedicated to what Campanini considers to be Ibn Rushd's view of language as a pluralistic means of expressing the same truth in multiple ways.... (shrink)

Modern moral and political philosophy is in debt with natural law theory, both in its ancient and mediaeval elaborations. While the very notion of a natural law has proved highly controversial among 20th Century scholars, the last decades have witnessed a renewed interest in it. Indeed, the threats and challenges as result of multiculturalism, plural societies and global changes have generated a renewed attention to natural law theory. Clearly, it offers solid basis as possible framework to a better understanding of (...) human goods without contradictions and partial bias. The purpose of the present volume is to provide an overview of the history of this concept (Cicero, St. Paul, Aquinas, Melanchthon, Montaigne, Descartes, Leibniz, Hume, Burke, Kant, MacIntyre, etc.) as well as a deep understanding of ongoing research, both in Europe and in America. Furthermore, the specificity of these studies will be of particular value to philosophers, law-philosophers, historians, anthropologists, sociologists and theologians, and those concerned on such issues as the relation between law and moral norm, law and practical reason, and the presence of the idea of natural law in several prominent thinkers. It includes a selected bibliography on natural law. The book also provides an excellent introduction to several of the major topics in natural law theory making it useful both as a reference text and as a sourcebook for academics alike. Natural law is a rich, complex, and highly disputed term. Since its first appearances in the history of Western civilization, it has been used both to point to God as the source of the moral order and to assert that there is an objective order of justice in nature that men and their laws ought to respect. In modern times, natural law theory gave birth to what we usually call "human rights." Unlike the meaning of the term, the importance of an ongoing debate on natural law and on the theories related to it is undisputable. This is why I welcome today this new collection of essays edited by Alejandro Nèstor Garcìa Martìnez, Mario Å ilar and Josè M. Torralba. Natural Law: Historical, Systematic and Juridical Approaches includes a wide variety of studies, covering key authors and issues in natural law theory. Younger students will appreciate the clarity of the chapters, and more trained readers the detailed and accurate bibliographical references that each of them offers. The editors's choice to go from a historical approach to contemporary theories, and then to theoretical and more practical issues is also commendable. Students in philosophy and in legal theory will greatly benefit from this book. Fulvio Di Blasi, author of God and the Natural Law: A Rereading of Thomas Aquinas. (shrink)

This chapter contains sections titled: Introduction The Ideal Form of Mutual Recognition Hegel's State of Nature De Facto Authority De Jure Authority Legitimate Authority Constitutional Authority Conclusion Notes References.

This article offers a refutation of the corrective justice interpretation of tort law – the view that it is essentially a system of corrective justice. It introduces a distinction between primary and secondary tort duties and claims that tort law is best understood as the union of its primary and secondary duties. It then advances two independent criticisms of the corrective justice interpretation. The article first argues that primary tort duties have nothing fundamentally to do with corrective justice and (...) that, if one understands what is meant by ``primary tort duties,'' one is compelled to regard this fact as a decisive objection to the corrective justice interpretation. Second, it argues that, whatever relation there is between secondary tort duties and corrective justice, that relation also holds between corrective justice and secondary duties of other legal branches. In sum, the concept of corrective justice is neither capable of unifying tort law nor of demarcating it from other legal branches.The article also offers a general alternative interpretation of tort law. Rather than being essentially corrective, tort law is essentially protective. Under this picture, if tort law has a most important point, it is the protection of legal subjects and valuable social interests from harm. This is the overarching ambition that unifies primary and secondary tort duties. It does not, however, demarcate tort law from other legal branches. (shrink)

The subject of this article is the axiological basis of relations between morality and politics. The author shows anthropological and metaphysical origins of the idea of common good in social life. What role does morality play in political activity and where are moral foundations of a democratic state to be found? How to ensure the presence of moral values in public life. The most important questions include: Who is responsible for ideas of democracy? Can democracy survive without a (...) footing in pre–democratic values? (shrink)

Leading philosopher Peg Birmingham explores the relation between political deception, violence, and law in an attempt to renew the concept of the political.