1 THE PROBLEM OF JURISPRUDENCE, OR TELLING THE TRUTH OF LAW: an entry into recurring questions?
The scope of jurisprudence, or what is involved in asking ‘what is law’?
Legal positivism as the dominant tradition in the jurisprudence of modernity
Confronting post-modernity: from Dworkin to Blade Runner
The particular problematic of analysing law in the conditions of post-modernity
2 ORIGINS: Classical Greece and the idea of Natural Law
PART ONE — LAW AND THE EXISTENTIAL QUESTION
Asking the basic questions, or becoming aware of the existential foundations of law
The physical and existential aspects of social existence
Intellectual thought begins in myth and the mystery of the holy
The existential problem reflected in Greek literature and philosophy: the example of Antigone
Interpretations of the legal tensions in Antigone
PART TWO — THE CONTEXT FOR THE NATURAL LAW OF THE CLASSICAL GREEKS
The context for classical Greek philosophy was the development of the city-state
Plato’s myth of emancipation through truth: the simile of the cave
PART THREE — PLATO’S JURISPRUDENCE
The Platonic conception of justice as evidenced in the republic
The role of education into the ‘truth’
The underlying stress upon unity of social purpose
The more pragmatic approach of The Laws
PART FOUR — THE JURISPRUDENCE OF ARISTOTLE
Aristotle and the ethics of natural ends
Happiness as the final end of human life
Justice as a function of the relative size of the social body
The empirical mode of identifying natural law
3 THE LAWS OF NATURE, MAN’S POWER AND GOD: the synthesis of mediaeval Christendom
The rise of universalism with the dedine of the Greek city-states
The idea of mankind as players in cosmic drama
The retort of the sceptics to the claims of knowledge to guide human affairs
The approach of the Roman statesman Cicero (of Arpinum, 106-43BC)
The retort of Augustine and the development of a theological natural law
The narratives of travelling and platonic asceticism in Augustine’s natural order
Augustine’s idea of social existence as divided between ‘two cities’ and his philosophy of history
Aquinas’ ideas of the ends of man and the natural law
The interconnection of eternal, natural, human and divine law
The Thomistic conception of the state
A critical note on the mystification of natural law and its relationship to existential security
The usurper Machiavelli: an early attempt to break the religious conception of natural law
The Elizabethan image of the cosmos as a settled chain of being
The dialectic of fear and power when the mediaeval view was unsettled
The power relationship inherent in natural religion contrasted with the power of knowledge
Hobbes’s secular natural law or ‘the natural rules of the human condition’
Law as the command of the sovereign reinforced by power
Conclusion: understanding the dilemma and the legacy Hobbes leaves us with
5 DAVID HUME — DEFENDER OF EXPERIENCE AND TRADITION AGAINST THE CLAIMS OF REASON TO GUIDE MODERNITY
Understanding Hume: a note on the literature
Emerging methodological concepts for understanding human sociality: individualism versus holism
Climbing out of the void underlying the new start of modernity
The pragmatism of Hume’s return to the common life
The role of memory and of the narratives of social life
The supposition of a beneficent nature which works by gradual accumulation
Social institutions discipline mankind into settled habits of behaviour
6 IMMANUEL KANT AND THE PROMOTION OF A CRITICAL RATIONAL MODERNITY
Purity and autonomy as the principles of the modern
The principle of rational autonomy would be the guide for modernity
Recognising the types of knowledge, each with different fundamental presuppositions
Defining the ontology of the rational agent
Contrasting the right to the good
Kant on describing the journey of mankind
PART ONE — THE AMBIGUOUS ROMANTICISM OF ROUSSEAU AND THE EXPRESSIVE IDEA OF THE SOCIAL CONTRACT
Modernity: an uncertain context for legitimating social institutions
Interpreting Rousseau’s message
Hegel: reconnecting the dualism of this human condition into the totality of this world
Freedom as a key criterion for modernity
The state must reflect our need for a moral social order
The ambivalence of Hegel’s picture: romanticism and warning
The sovereign will, or the nature of the will of the sovereign
The social role and limits of modern knowledge
The dialectics of modernity: action, hope and destruction
Concluding summary: Hegel and the dream of a full modernity
Understanding the moral foundation for Adam Smith’s proposal of the hidden hand of the market
Developing the idea of sympathy
Is there any absolute guarantee for Smith’s idea of sympathy and the impartial spectator?
The role of positive law and punishment in guaranteeing modern ‘commercial’ society
PART TWO — JEREMY BENTHAM (1748–1832) AND THE ORIGINS OF MODERN UTILITARIAN JURISPRUDENCE
Utility proposed as the fundamental principle for a new science of morality
Can the principle of utility be proved? Or has Bentham assumed its validity?
Law as the instrument of utilitarian reform
The dual images of visibility and control inherent in utilitarianism
Understanding the context of John Stuart Mill’s humanising of classical Benthamite utilitarianism
On Liberty, and the search for the first principle to guide policy
The complex interaction between the liberty principle and general utilitarianism
The end product of the interaction of liberty and utility is social progress
The respective roles of written or state law and unwritten law and the need for tolerance
Can the boundaries of harm and offence be easily drawn?
Mill’s optimism concerning modernity
Liberal philosophy needs to be complemented with historical and sociological understanding
9 JOHN AUSTIN AND THE MISUNDERSTOOD BIRTH OF LEGAL POSITIVISM
Introduction: the modernity of John Austin’s jurisprudence
PART ONE — RESCUING AUSTIN FROM THE COMMENTATORS
Who is the John Austin of jurisprudence texts?
Aspects of the usual treatment of Austin
Austin’s concepts are part of an overall synthesis
Excursus upon the relationship of positivism and Austinian legal positivism
PART TWO — UNDERSTANDING THE STRUCTURE OF AUSTIN’S JURISPRUDENCE
Law is both a creation of and constitutive element in civilisation
The relationship of power and superiority
Utility is the key principle of social justice
The issue of international law
The role of judicial law-making
The suffocating nature of the traditional interpretation of Austinian positive jurisprudence
The problem of Austin’s inability to rewrite his lectures
10 KARL MARX AND THE MARXIST HERITAGE FOR UNDERSTANDING LAW AND SOCIETY
Marxism as hope and transcendence
Introduction to Marxist theorising: the dialectic of the universal and the particular
One appeal of Marx’s theory was his narrative of history
Caveats for understanding the role of a Marxist jurisprudence
An outline of the development of Marx’s legal thought
The statement of the scientific foundation of the later Marx
Aspects of Marxist methodology
Marx on the empirical legal order and (social) justice
Law as constitutive regulation
The Marxist search for justice is a struggle against inhumanity and exploitation
What relevance is there for the legacy of Marx after the collapse of Marxism?
11 WEBER, NIETZSCHE AND THE HOLOCAUST: towards the disenchantment of modernity
The rationalisation of the world
The elements of rationalisation
The nation-state, legality and the rise of capitalism
Forms of legitimate domination
The problem of legitimacy in modernity — the reason for jurisprudence?
The methodology of sociological understanding
Disenchantment is the fate of a modernity committed to freedom guided through knowledge
Weber on the fate of natural law ideology
Modern discipline and the routines of everyday life
The openness of law’s truth and law’s creativity
PART TWO — FRIEDRICH NIETZSCHE (1844–1900): RADICAL MODERN OR THE PROPHET OF THE POST-MODERN?
Introduction to Friedrich Nietzsche: philosopher of the post-modern condition
On the unconscious, and the need to conduct a genealogy of morality
On the difficulty of giving a simple definition or explanation of social institutions
On the need to change the destiny and the type of human
On the homelessness of modern man
An outline of the main ways of viewing the Holocaust
The use of law to transform the Jews into subhuman material
The Holocaust as a part of the general rationalisation of modernity
The disciplining of camp guards and SS men
Jurisprudence and the response to the Nazi regime and the Holocaust
12 THE PURE THEORY OF HANS KELSEN
Kelsen’s social and political agenda
The incomplete rationalisation of legal positivism
The structure of the pure theory
The specific nature of the legal norm
The interpretative faculties of the legal scientist
The material for interpretation is found in the legal system’s notion of legal validity
The Grundnorm or basic norm is a presupposition of thought rather than some empirical event or being
The relationship of validity and efFectivity
The uniqueness of the basic norm
Does the fictional or presupposed nature of the basic norm destroy the purity of Kelsen’s theory?
In what way does Kelsen’s Pure Theory illuminate the fate of legal positivism?
The Concept of Law. the jewel of modern jurisprudence, or a testament to its times?
The structure of The Concept of Law
The criticisms of a model of the imperative theory based on Hart’s reading of John Austin
Hart’s unsatisfactory resolution of the Wittgenstein legacy
The formal existence of a legal system
The internal aspect of rules and the question of obedience
The structure of Hart’s analytic theory of law
Hart’s minimum content of natural law
Hart’s theory of legal reasoning: a middle way between formalism and rule scepticism?
PART ONE — KELSEN AND THE TENSION BETWEEN DYNAMIC AND STATIC THEORIES OF JUSTICE
The interaction of justice, happiness, and authenticity
Kelsen’s espousal of dynamic justice over the traditions of static justice
PART TWO — LON FULLER (1902–1978) AND THE IDEA OF A JUST METHODOLOGY OF LEGALISM
Fuller’s attempt to create a purposive account of legality
The specific internal morality of law
Communication as the key principle to be safeguarded by liberal legality
PART THREE — JOHN RAWLS AND A THEORY OF JUSTICE
Rawls places the question of legitimacy at the forefront of modern social life
Rawls’s idea of reasonable growth: balancing development and moral respect
PART FOUR — THE RADICAL FREE-MARKET PHILOSOPHY OF ROBERT NOZICK
Nozick as an example of philosophical libertarianism
Arguments based on fair acquisition
Contradictory problems with the principle of rectification
The weakness of the libertarian position
PART FIVE — EXAMPLES OF THE COMMUNITARIAN CRITIQUE OF LIBERAL THEORIES OF JUSTICE
The critical analysis of Michael Sandel
Charles Taylor and the charge of atomism
Alasdair MacIntyre and the attempt to rediscover virtue
The communitarian displacement of the debate over the respective priority of the right and the good
Can Rawls respond to the communitarian critique?
Excursus: the fate of the transparent society?
The critique of legal positivism and Hart’s theory of legal reasoning
Is there a right answer inherent in the grammar of legal argumentation?
Dworkin’s early theory of judicial practice as aiming for principled consistency
Dworkin’s development of the idea of rights
Law as the open-ended practice of integrity: the dreams of Law’s Empire
Jurisprudence and the judicial attitude
Law as an unfinished enterprise: the judicial role and the writing of a chain novel
Objections and criticisms of Dworkin
Interpretation revisited: or is Dworkin an interpretative imperialist?
Dworkin’s inspirational metaphysics: the politics of principled communitarianism
16 SCEPTICISM, SUSPICION AND THE CRITICAL LEGAL STUDIES MOVEMENT
Prologue: a meditation upon innocence and scholastic knowledge
Destroying innocence: the turn to other knowledges
The importance of a mood of scepticism and frustration with mainstream legal education
The problematising of social progress and the humanising of jurisprudence
Legal liberalism is seen as representing a specific form of politics
Duncan Kennedy and the idea of the fundamental contradiction
Contrast Patricia Williams on rights talk
Revising the fundamental contradiction: or can CLS escape the need to be rational?
What can be put in place of these rejected ideas?
17 UNDERSTANDING FEMINIST JURISPRUDENCE
Basic issues include those of domination, patriarchy and women’s sense of justice
How does feminist jurisprudence seek to address these issues?
Schools and periods of feminist ‘jurisprudential’ writings
Into multiple subjectivities: the impact of black, or critical race, feminism
18 CONCLUDING REMARKS: or reflections on the temptations for jurisprudence in post-modernity