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Legal Theory (legal + theory)
Selected AbstractsUnity and Diversity in Feminist Legal TheoryPHILOSOPHY COMPASS (ELECTRONIC), Issue 4 2007Margaret Davies Feminist legal theory has undergone some significant changes over the past thirty years. This article provides an introductory overview of feminist legal theory, from liberal and radical feminism through to postmodernism. It outlines some of the major current issues within feminist legal thought, notably debates surrounding culture and religion, the relationship of sex and sexuality scholarship to feminist research, and the position of women within transitional societies. [source] Form and Formalism: The View from Legal TheoryRATIO JURIS, Issue 1 2007BRIAN BIX While accepting the value of a form-centered approach to studying law, the article questions Summers' claim that his approach is clearly superior to (and not merely complementary with) traditional analytic theories, like those of Hart and Kelsen. The article also suggests that the book's discussion of form in contract and commercial law is somewhat disappointing, given Summers' expertise in this area, and the many difficult form-related questions that area raises. [source] Our Knowledge of the Law: Objectivity and Practice in Legal Theory by George PavlakosTHE MODERN LAW REVIEW, Issue 2 2009Veronica Rodriguez-Blanco No abstract is available for this article. [source] Risks and Legal TheoryTHE MODERN LAW REVIEW, Issue 3 2005Chris Miller No abstract is available for this article. [source] From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue SnifferTHE MODERN LAW REVIEW, Issue 4 2002Alan Norrie The modern idea of criminal justice is organised around a series of antinomies which include the formal and the substantive, the universal and the particular, the individual and the social. This paper examines the place of these antinomies in four different but connected settings: the plight of the humane judge, the classical enlightenment theory of retributive punishment, the judgment of provoked killing, and the critique of orthodox subjectivism in the Anglo,American law. The play of the universal and the particular and the formal and substantive within law reflects and embodies the underlying antinomy of the individual and the social , even where it does not mention it. The qualitative moment is preserved in all quantification, as the substrate of that which is to be quantified. [source] The Concept of Law Revised,Directives and Norms in the Perspectives of a New Legal RealismRATIO JURIS, Issue 1 2001Werner Krawietz Legal theory usually distinguishes only two kinds of legal realism: the American and the Scandinavian. Another school of this theoretical perspective is German legal realism, which refers to scholars like Ihering, Weber, and Schelsky. According to German legal realism, the author outlines what legal theory can do to persuade modern jurisprudence to face the social reality of law, conceived as institutionalized normative communication. The latter always occurs with reference to already valid and effectively operative legal norms which are used in an established, normatively binding legal practice in a given regional society. [source] The Concept of Law and Its ConceptionsRATIO JURIS, Issue 2 2006PETER KOLLER With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking. [source] From moral theory to penal attitudes and back: a theoretically integrated modeling approach,BEHAVIORAL SCIENCES & THE LAW, Issue 4 2002Jan W. de Keijser Ph.D. From a moral standpoint, we would expect the practice of punishment to reflect a solid and commonly shared legitimizing framework. Several moral legal theories explicitly aim to provide such frameworks. Based on the theories of Retributivism, Utilitarianism, and Restorative Justice, this article first sets out to develop a theoretically integrated model of penal attitudes and then explores the extent to which Dutch judges' attitudes to punishment fit the model. Results indicate that penal attitudes can be measured in a meaningful way that is consistent with an integrated approach to moral theory. The general structure of penal attitudes among Dutch judges suggests a streamlined and pragmatic approach to legal punishment that is identifiably founded on the separate concepts central to moral theories of punishment. While Restorative Justice is frequently presented as an alternative paradigm, results show it to be smoothly incorporated within the streamlined approach. Copyright © 2002 John Wiley & Sons, Ltd. [source] Looking for Coherence within the European Community*EUROPEAN LAW JOURNAL, Issue 2 2005Stefano Bertea It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists. [source] Forms of Governance in European Union Social Policy: Continuity and/or Change?INTERNATIONAL SOCIAL SECURITY REVIEW, Issue 2 2006Gerda Falkner This article addresses the question of the evolution of regulatory and distributive social policy at European Union (EU) level, with special emphasis on its quantitative aspects. Data collected in meticulous detail on the EU's powers in the area of social policy and their practical implementation from the early days of European integration through to the end of 2002 are presented in a range of figures and tables. It becomes apparent that, quantitatively speaking, the body of EU social law in existence to date is impressive. Contrary to expectation, non-binding forms of action have not replaced those which are binding, or at least not yet. Soft law and the "open method of coordination", the subject of so much recent debate, are rather a complement to classic legislation, entailing a minimum of harmonization. In terms of political science and legal theory this means that while the neo-voluntarism and legalization hypotheses highlight important aspects of EU social policy, neither of them represents the whole story. [source] Responsibilities of Criminal Justice OfficialsJOURNAL OF APPLIED PHILOSOPHY, Issue 2 2010KIMBERLEY BROWNLEE abstract In recent years, political philosophers have hotly debated whether ordinary citizens have a general pro tanto moral obligation to follow the law. Contemporary philosophers have had less to say about the same question when applied to public officials. In this paper, I consider the latter question in the morally complex context of criminal justice. I argue that criminal justice officials have no general pro tanto moral obligation to adhere to the legal dictates and lawful rules of their offices. My claim diverges not only from the commonsense view about such officials, but also from the positions standardly taken in legal theory and political science debates, which presume there is some general obligation that must arise from legal norms and be reconciled with political realities. I defend my claim by highlighting the conceptual gap between the rigid, generalised, codified rules that define a criminal justice office and the special moral responsibilities of the various moral roles that may underpin that office (such as guard, guardian, healer, educator, mediator, counsellor, advocate, and carer). After addressing four objections to my view, I consider specific contexts in which criminal justice officials are obligated not to adhere to the demands of their offices. Amongst other things, the arguments advanced in this paper raise questions about both the distribution of formal discretion in the criminal justice system and the normative validity of some of the offices that presently exist in criminal justice systems. [source] Legal Weapons for the Weak?LAW & SOCIAL INQUIRY, Issue 4 2001Democratizing the Force of Words in an Uncivil Society First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial "hate speech." I argue that this stalemate can be overcome by considering a more expansive theory of the "force of words" and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech [source] Unity and Diversity in Feminist Legal TheoryPHILOSOPHY COMPASS (ELECTRONIC), Issue 4 2007Margaret Davies Feminist legal theory has undergone some significant changes over the past thirty years. This article provides an introductory overview of feminist legal theory, from liberal and radical feminism through to postmodernism. It outlines some of the major current issues within feminist legal thought, notably debates surrounding culture and religion, the relationship of sex and sexuality scholarship to feminist research, and the position of women within transitional societies. [source] Legal Positivism and the Separation of Existence and ValidityRATIO JURIS, Issue 1 2010MATTHEW GRELLETTE This paper centers upon the issue, within the project of analytic jurisprudence, of how to construe the status of the legal activities of a state when there is a disjuncture between a nation's formal legal commitments, such as those stated within a bill or charter of rights, and the way in which its officials actually engage in the practice of law, i.e., legislation and adjudication. Although there are two positions within contemporary legal theory which focus directly on this issue (Inclusive and Exclusive Legal Positivism), neither is able to offer an acceptable descriptive-explanatory account of the variety of legal activities at play within such situations. Thus, tensions between legal formality and practice, existent in many legal systems today, can be used to delineate a theoretical gap in regard to our understanding of law. This paper serves to acknowledge that point, and suggests a possible constructive solution to the positivists' descriptive-explanatory problem. Furthermore, in taking seriously the gap between the normative orientation of a legal system and its de facto practice, this paper also suggests other areas within analytic jurisprudence that might be meaningfully informed by that issue. [source] Secret Law and the Value of Publicity*RATIO JURIS, Issue 2 2009CHRISTOPHER KUTZ The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers. [source] Schmitt's Critique of Kelsenian Normativism,RATIO JURIS, Issue 1 2005SYLVIE DELACROIX Schmitt's underlining of the limits which a certain kind of positivism imposes upon itself highlights a contemporary issue about what legal theory should aim at when accounting for the normative dimension of law. Schmitt's ultimate failure to take up the theoretical challenge he himself raised (with its well-known consequences) is deemed to illustrate,negatively,the importance of providing a plausible account of the social practices which bring law into existence. [source] Kelsen's Development of the Fehlerkalkül -TheoryRATIO JURIS, Issue 1 2005CHRISTOPH KLETZER The issues dealt with feature under various headings,albeit always prominently,in the national schools of legal theory. What distinguishes the Viennese approach is the extraordinary generality and height of abstraction it has reached and that facilitates the unification of most disparate legal phenomena. The intention of the article is threefold: firstly, to bring the important, albeit mostly maltreated theory of the Fehlerkalkül ("error-calculus") into the light of theoretical attention; secondly, to demonstrate Kelsen's method of developing legal philosophy only given concrete problems of the positive law and its theory; finally, to deal with criticism. [source] On "Coherence" and "Law": An Analysis of Different ModelsRATIO JURIS, Issue 2 2001Aldo Schiavello The aim of this paper is to compare different conceptions of the role of (normative) coherence in the legal field. More precisely, it aims to deepen Neil MacCormick's theory of legal reasoning, in which coherence is essentially considered an interpretative tool, and Ronald Dworkin's legal theory, in which coherence occupies a more crucial place. The main results of this paper can be summarized in two points. A) For Dworkin, coherence is not just an interpretative standard but constitutes the hard core of his theory of law. B) As a consequence of A, Dworkin's reflections on coherence (as an interpretative standard) cannot be separated from his theory of law grounded on the concept of integrity. [source] The Concept of Law Revised,Directives and Norms in the Perspectives of a New Legal RealismRATIO JURIS, Issue 1 2001Werner Krawietz Legal theory usually distinguishes only two kinds of legal realism: the American and the Scandinavian. Another school of this theoretical perspective is German legal realism, which refers to scholars like Ihering, Weber, and Schelsky. According to German legal realism, the author outlines what legal theory can do to persuade modern jurisprudence to face the social reality of law, conceived as institutionalized normative communication. The latter always occurs with reference to already valid and effectively operative legal norms which are used in an established, normatively binding legal practice in a given regional society. [source] Justification as a Process of DiscoveryRATIO JURIS, Issue 4 2000Rauno Halttunen Legal decision-making interests theoreticians in our discipline largely in terms of how a legal decision is justified. In his book, Bruce Anderson (1996) has posited a distinction between how a decision is arrived at, on one hand, and how it is justified, on the other. Anderson seems to be suggesting that legal theory should set out to continue the work of the American realists, that is, to develop legal decision-making as a process of discovery towards a solution. In my presentation, I will be looking at legal decision-making as a process of finding or discovering knowledge. What I mean by "discovery," however, is the discovery of new scientific knowledge. (The theory of science draws a distinction between proving and discovering knowledge.) I submit that for a justification to be valid the arguments comprising it ought to fulfill the logical conditions stipulated for the discovery of knowledge. In the present paper, I also hope to share with you the main ideas of a book I am currently writing on the subject. [source] Scarcity, Discourses of Implementation, and Habermasian Law and DemocracyRATIO JURIS, Issue 2 2000Kenneth Avio This paper contains a critique of Habermas' discourse theory of law and democracy from an economic perspective. An example drawn from Klaus Günther's work on discourses of application suggests the failure of discourse ethics to adequately account for the problem of scarcity. This blindpoint is reflected in Habermas' legal theory through the latter's inadequate recognition of the internal connection between markets and law. Discourses of implementation are introduced as a discourse-relevant procedure to account for the problem of scarcity. Consensus, as defined by Habermas, cannot be the agreement mode applicable to discourses of implementation. [source] The Paradox of Transparency, Short-Termism and the Institutionalisation of Australian Capital MarketsAUSTRALIAN ACCOUNTING REVIEW, Issue 4 2009Gavin Nicholson As the ultimate corporate decision-makers, directors have an impact on the investment time horizons of the corporations they govern. How they make investment decisions has been profoundly influenced by the expansion of the investment chain and the increasing concentration of share ownership in institutional hands. By examining agency in light of legal theory, we highlight that the board is in fact,sui generis,and not an agent of shareholders. Consequently, transparency can lead to directors being ,captured' by institutional investor objectives and timeframes, potentially to the detriment of the corporation as a whole. The counter-intuitive conclusion is that transparency may, under certain conditions, undermine good corporate governance and lead to excessive short-termism. [source] | ||||||||||||||||