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Analytical Legal Naturalism

Analytical Legal Naturalism

Author: S. Zinaich Jr.

Publisher: Lexington Books

ISBN: 9781498598804

Category: Philosophy

Page: 207

View: 856

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In legal jurisprudence, the phenomenon of “hard cases” presents itself as a dilemma between the legal positivists and the natural law realists. Of the former, without the metaphysical underpinnings of an objective legal or moral standard, the legal positivists cannot supply convincing arguments to supplant the sovereign as the origin and authority of law. The natural law realists face the problem of justifying the natural law. Against both views, S. Zinaich Jr. defends a middle position, Analytical Legal Naturalism (ALN). It represents an analytic norm, both necessarily true and known a posteriori. Against the legal positivists, it supplies an objective legal standard by removing--at least for hard cases--the necessity of the will of a sovereign authority. Against the natural law realists, ALN provides a nonmoral standard which, because of its analyticity and necessity, avoids the need for metaethical speculation. Finally, ALN provides a standard that not only supplies the universalizable punch to avoid political subjectivism, but does so in a conventional manner. Thus, ALN does not require a moral or modal reality as truth-making characteristics. Rather, it makes what is legally valuable or disvaluable dependent upon empirically verifiable facts that are legally relevant.

Analytical Legal Naturalism

Analytical Legal Naturalism

Author: S. ZINAICH (JR.)

Publisher: Lexington Books

ISBN: 149859879X

Category: Law

Page: 240

View: 148

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This book argues that analytical legal naturalism, which avoids the arbitrary principles associated with legal positivism and the odd properties associated with natural law, is a superior alternative for solving hard legal cases, where no close precedent arises or where conflicting precedents seem relevant.

Canadian Law and Indigenous Self?Determination

Canadian Law and Indigenous Self?Determination

Author: Gordon Christie

Publisher: University of Toronto Press

ISBN: 9781442628991

Category: Law

Page: 447

View: 168

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Canadian Law and Indigenous Self-Determination demonstrates how, over the last few decades, Canadian law has attempted to remove Indigenous sovereignty from the Canadian legal, social, and political landscape.

Legal Naturalism

Legal Naturalism

Author: Olufemi Taiwo

Publisher: Cornell University Press

ISBN: 9781501701740

Category: Law

Page: 228

View: 734

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Legal Naturalism advances a clear and convincing case that Marx's theory of law is a form of natural law jurisprudence. It explicates both Marx's writings and the idea of natural law, and makes a forceful contribution to current debates on the foundations of law. Olufemi Taiwo argues that embedded in the corpus of Marxist writing is a plausible, adequate, and coherent legal theory. He describes Marx's general concept of law, which he calls "legal naturalism." For Marxism, natural law isn't a permanent verity; it refers to the basic law of a given epoch or social formation which is an essential aspect of its mode of production. Capitalist law is thus natural law in a capitalist society and is politically and morally progressive relative to the laws of preceding social formations. Taiwo emphasizes that these formations are dialectical or dynamic, not merely static, so that the law which is naturally appropriate to a capitalist economy will embody tensions and contradictions that replicate the underlying conflicts of that economy. In addition, he discusses the enactment and reform of "positive law"—law established by government institutions—in a Marxian framework.

The Making of Constitutional Democracy

The Making of Constitutional Democracy

Author: Paolo Sandro

Publisher: Bloomsbury Publishing

ISBN: 9781509905232

Category: Law

Page: 416

View: 221

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This book addresses a palpable, yet widely neglected, tension in legal discourse. In our everyday legal practices – whether taking place in a courtroom, classroom, law firm, or elsewhere – we routinely and unproblematically talk of the activities of creating and applying the law. However, when legal scholars have analysed this distinction in their theories (rather than simply assuming it), many have undermined it, if not dismissed it as untenable. The book considers the relevance of distinguishing between law-creation and law-application and how this transcends the boundaries of jurisprudential enquiry. It argues that such a distinction is also a crucial component of political theory. For if there is no possibility of applying a legal rule that was created by a different institution at a previous moment in time, then our current constitutional-democratic frameworks are effectively empty vessels that conceal a power relationship between public authorities and citizens that is very different from the one on which constitutional democracy is grounded. After problematising the most relevant objections in the literature, the book presents a comprehensive defence of the distinction between creation and application of law within the structure of constitutional democracy. It does so through an integrated jurisprudential methodology, which combines insights from different disciplines (including history, anthropology, political science, philosophy of language, and philosophy of action) while also casting new light on long-standing issues in public law, such as the role of legal discretion in the law-making process and the scope of the separation of powers doctrine.

Metaphilosophy of Law

Metaphilosophy of Law

Author: Pawel Banas

Publisher: Bloomsbury Publishing

ISBN: 9781509906093

Category: Law

Page: 272

View: 230

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Methodological and metaphilosophical disputes in the contemporary philosophy of law are very vivid. Basic issues remain controversial. The purpose of the book is to confront approaches of Anglo-Saxon and continental philosophy of law to the following topics: the purpose of legal philosophy, the role of disagreement in legal philosophy, methodology of legal philosophy (conceptual analysis) and normativity of law. We see those areas of legal metaphilosophy as drawing recently more and more attention in the literature. The authors of particular chapters are internationally recognised scholars rooted in various traditions: Anglo-Saxon (Gerald Postema, Dennis Patterson, Kenneth Ehrenberg, Veronica Rodriguez-Blanco); Southern-European (Riccardo Guastini, Manuel Atienza); Nordic (Torben Spaak); German (Ralf Poscher); and Central-European (Jan Wolenski, Tomasz Gizbert-Studnicki, Adam Dyrda). They represent different approaches and different backgrounds. The purpose of the volume is to contribute to the cross-cultural discussions of fundamental issues of philosophy of law.

A Critical Appraisal of Karl Olivecrona's Legal Philosophy

A Critical Appraisal of Karl Olivecrona's Legal Philosophy

Author: Torben Spaak

Publisher: Springer

ISBN: 9783319061672

Category: Law

Page: 288

View: 874

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This book offers a critical appraisal of Karl Olivecrona’s legal philosophy. Based on Olivecrona’s critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, the book argues that Olivecrona’s legal philosophy is a unique contribution to twentieth century legal philosophy. It shows how Olivecrona’s philosophy can be used in the assessment of contemporary theories of law, such as those put forward by Hart, Raz, Dworkin, and Alexy. In addition, the book argues that Olivecrona’s various discussions of theories defended by key people in the history of legal and political philosophy are highly interesting contributions. They not only increase our understanding of the legal and political philosophy of previous generations, but also enhances our insight into legal-philosophical questions that remain with us today.

Research Handbook on Modern Legal Realism

Research Handbook on Modern Legal Realism

Author: Shauhin Talesh

Publisher: Edward Elgar Publishing

ISBN: 9781788117777

Category: Law

Page: 544

View: 552

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This insightful Research Handbook provides a definitive overview of the New Legal Realism (NLR) movement, reaching beyond historical and national boundaries to form new conversations. Drawing on deep roots within the law-and-society tradition, it demonstrates the powerful virtues of new legal realist research and its attention to the challenges of translation between social science and law. It explores an impressive range of contemporary issues including immigration, policing, globalization, legal education, and access to justice, concluding with and examination of how different social science disciplines intersect with NLR.

Understanding the Nature of Law

Understanding the Nature of Law

Author: Michael Giudice

Publisher: Edward Elgar Publishing

ISBN: 9781784718817

Category: Law

Page: 272

View: 135

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Understanding the Nature of Law explores methodological questions about how best to explain law. Among these questions, one is central: is there something about law which determines how it should be theorized? This novel book explains the importance of

Meta-theory of Law

Meta-theory of Law

Author: Mathieu Carpentier

Publisher: John Wiley & Sons

ISBN: 9781789450743

Category: Philosophy

Page: 388

View: 340

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This book is devoted to the theory of legal theory, also referred to as the "meta-theory of law". The aim of this emerging discipline is to determine the objectives, aims and methods of legal theory, and to establish the conditions of possibility as well as the validity criteria for theoretical discourse on law. The contributions in this book provide an overview of these aspects through different perspectives and approaches. The very purpose of legal theory has been disputed and the subject area is currently subject to increasing cross-fertilization between different, and sometimes diverging, traditions. Meta-theory of Law assesses these emerging trends by questioning two basic objects of legal theory, the "nature" and the "science" of law.

Routledge Encyclopedia of Philosophy

Routledge Encyclopedia of Philosophy

Author: Edward Craig

Publisher:

ISBN: 0415187109

Category: Philosophy

Page: 890

View: 898

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Volume five of a ten volume set which provides full and detailed coverage of all aspects of philosophy, including information on how philosophy is practiced in different countries, who the most influential philosophers were, and what the basic concepts are.

New Waves in Philosophy of Law

New Waves in Philosophy of Law

Author: Maksymilian Del Mar

Publisher: Springer

ISBN: 9780230316645

Category: Philosophy

Page: 285

View: 942

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A collection of 11 cutting-edge essays by leading young scholars, challenging long-held assumptions and offering new research paradigms in Philosophy of Law - in five parts 1) methodology/metatheory; 2) reasoning/evaluating; 3) values/the moral life; 4) institutions/the social life; and 5) the global/international dimension.