Related Papers
Canadian Journal of Law and Society
Introduction | Law and Decolonization
2014 •
Stacy Douglas
This special issue of the Canadian Journal of Law and Society takes as its focus the relationship between law and decolonization. Does the deconstruction of colonial institutions and practices such as law insinuate the eradication of the contemporary state-form as we know it? And if so, what does such a dismantling entail, and how might political-juridical framework(s) be newly imagined, let alone concretely constructed? Importantly, several of the articles contained herein point to settler-colonial sovereignty as an unfinished project. In so doing, this issue delves into the tensions raised by the question: What is the relationship between law and decolonization?
The Encyclopedia of Christianity, ed. Erwin Fahlbusch
Law and Legal Theory
2003 •
John Witte, Jr.
This Article provides a brief analysis of the main shifts in Western law and legal theory in four watershed Enlightenment of the eighteenth and nineteenth centuries. It shows how major shifts in dominant religious ideas transformed the legal ideas and institutions of their day. It concludes that, although recent secular movements have removed traditional forms of religious influence on Western law, contemporary Western law still retains important connections with Christian and other religious ideas and institutions.
SSRN Electronic Journal
Renewing Legal Theory: History and the Unity of Legal Things
2013 •
John Lunstroth
This is a comprehensive, speculative, non-naturalist and historicist framework of a theory of law. I address the relationship between nature and law in general; the nature of law; the nature and taxonomy of legal things; the effect of the Enlightenment on legal theory; the relationship between science and law, and between law and history; the poverty and dangers of both positivism and natural law theory; and I address several philosophical issues that are concomitant to an understanding of law in general, including the role of the universal, the centrality of the vision of life; the relationship between life and consciousness (critiquing Nagel’s new book in the process), consciousness and history, and history and law; sacrifice; evil, and the future, among other things. I explicitly place myself in the Aristotelian/Hegelian traditions. As a subtext, I grapple with containing the systematic problem science presents to legal/political order. By laying the groundwork for a renewal of legal theory outside of the constraints of positivism and natural law the framework also lays the groundwork for a reevaluation of the role science should play in the political/legal order, and therefore of science itself. The mechanism for these reevaluations is enabled by the specific grounding of the theory in the findings of neuroscience. Neuroscience teaches one of two irreconcilable things: either man has no free will; or there is a scope of free and real capacity for the mature human to make choices, to exercise free will (within constraints). The first of these two conclusions must be wrong because it contradicts not only experimental findings about man, but it contradicts the experience of every mature human. It is a philosophical conclusion based on Enlightenment metaphysics of science. If man has no free will, there is no basis for political order, for responsibility, etc., an argument we are familiar with but fail to understand and follow to its logical and historical implications, as now I do. I begin my argument with a theory of consciousness and freedom.
Routledge Handbook of International Law and the Humanities
The Time of Revolution: Decolonisation, Heterodox International Legal
2021 •
Matt Craven
Rethinking Legal Ideals after Deconstruction
Drucilla Cornell
In this essay I seek to challenge a reading of "deconstruction," and postmodernism more generally, that has been proposed by its friends and its foes in legal circles. Deconstruction and postmodern genealo- gies inspired by Nietzsche are often read to expose the nakedness of power struggles and indeed of violence masquerading as the rule of law. With this exposure, the jurisprudential intervention of these philo- sophical positions supposedly comes to an end.1 The enemies of decon- struction challenge this exposure as itself an act of ethical irresponsibil- ity that leaves in its stead only the "right" of force, which, as a result, levels the moral differences between legal systems and blurs the all- too-real distinctions between different kinds of violent acts within legal systems. But I will also argue that even friends of deconstruction or postmodernism reach mistaken conclusions about what kinds of pro- grams of legal, political, and ethical reform can still ...
Legal Realism and Early Law: The influence of American legal doctrine in the study of non-Western law 1920-1960
2007 •
Kaius Tuori
Law's Empire and Empire's Lawlessness: Beyond the Anglo-American Law
Issa Shivji
Csaba Varga
Journal of Security and Sustainability Issues
WHAT DO WE OWE TO ROMANS? THE ROMAN SHIFT OF THE PARADIGM OF THINKING ABOUT LAW IN THE CONTEXT EUROPEAN LEGAL CULTURE
2023 •
Jędrzej M . Kondek
This study shall present the consequences of the paradigm shift in thinking about law that took place in Ancient Rome (primarily, but not exclusively, in the early republic). It will present what distinguished the Roman concept of law from the concept of law present in other ancient laws, and what is still a living heritage of Roman thought, even if we do not realize it on a daily basis. Roman law will be compared with other laws of the European cultural circle, and therefore, apart from ancient Greece, the so-called Eastern despotias and the state (states) of the Jews. However, it is more about ideas than specific solutions. Therefore, in the comparative material will be also included the Muslim law, although it was created after the promulgation of the Justinian Code, considered the final stage in the formation of ancient Roman law. The Muslim law is however-in a sense-an heir of Middle Eastern legislation and expresses an alternative to Roman way of thinking about law. The aim is to show not only what distinguishes Roman law from the laws that precede it or its contemporaries, but what distinguishes Roman law from other possible ways of looking at laws in general. As a research hypothesis is presented the statement that the fundamental for the development of European legal culture were not so much specific Roman normative solutions, but a change in the paradigm of thinking about law: its secularization, understood as a break with divine origin or the sanctioning of law, and its professionalization, understood as the development of a specific category professional people dealing with the analysis and interpretation of law. At the end it is presented an open question why the secularization of the law happened only in Rome and why it ever happened there although in all other analyzed legal systems the connection between law and religion was never surpassed which this did not prevent the formation of a precise and sublime law, as was the case of the Islamic world.
Social Identities
Review: Modernism and the Grounds of Law
2005 •
Roshan de Silva-Wijeyeratne
In Modernism and the Grounds of Law (hereinafter Modernism), Peter Fitzpatrick provides a deconstructive social theory of law in which the mythic foundations of the social contract as the central source of Western legal legitimacy is shown to rest on shaky foundations. In a critical sense it is the claims of legal positivism that are the symbolic and even phantasmatic target of Modernism . For example the protestations of globalisation (Modernism , pp. 183 /215) only reveal the claims of a global society that is structured around the ambivalent foundations of one version of the locale, that of Occidental neo-liberalism (Norrie, 2003, p. 124). As Alan Norrie notes this is a ‘patient depiction of the theoretical foibles of modernity’, and of the claims of positivism in both legal and sociological guise. It shows how legal discourse is thoroughly implicated not just in the discourse of race, but how the very identity of Western law was formed and continues to be generated through the relation with racialised forms of alterity. This argument will be of interest to anyone working with critical legal theory in general and for those researching in law and postcolonial studies comparative law specifically. Fitzpatrick’s approach to the questions of foundations is implicitly inspired by what Lyotard characterised as a consensus that is never reached for ‘somebody always comes along to distort the order of reason’ (1984, p. 61), and thus ensures that the search for an origin, the origin of modernity, of the universal, or of the nation is destined to remain structured by an aporia that signals the productive irresolution of signification (Derrida, 1982, p. 6). In a sense presence is always to arrive in the future. The absence of ground for Fitzpatrick is characterised by the phantasmatic core of legal positivism, the illusive beyond of law that functions as its paradoxical origin (Modernism , pp. 97 /101). Modernism opens by documenting the grounds of law that Freud essays in Totem and Taboo . This sets up the argument for the rest of the book. Civilisation must constantly repeat its foundational moment, but this act of repetition is always
