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Articles 1 - 9 of 9
Full-Text Articles in Law
The Fog Of Certainty, Robert B. Ahdieh
The Fog Of Certainty, Robert B. Ahdieh
Robert B. Ahdieh
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …
Redrawing The Dividing Lines Between Natural Law And Positivism(S), Jeffrey Pojanowski
Redrawing The Dividing Lines Between Natural Law And Positivism(S), Jeffrey Pojanowski
Jeffrey A. Pojanowski
Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this …
Dividing Crime, Multiplying Punishments, John F. Stinneford
Dividing Crime, Multiplying Punishments, John F. Stinneford
John F. Stinneford
When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a …
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram
David Ingram
It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …
Are Judges The Makers Or Discoverers Of The Law?: Theories Of Adjudication And Stare Decisis Withspecial Reference To Case Law In Pakistan, Muhammad Munir Dr
Are Judges The Makers Or Discoverers Of The Law?: Theories Of Adjudication And Stare Decisis Withspecial Reference To Case Law In Pakistan, Muhammad Munir Dr
Dr. Muhammad Munir
The debate about whether judges make or create the law is at the centre of any discussion about stare decisis. Modern authors have discussed the views of judges and jurists in the past. This work focuses on some of the notable judges and jurists of the twentieth century, such as Lord Denning, Lord Reid, Lord Devlin, Bodenheimer, Hart, Dworkin, from the Anglo–American legal systems. The views of the latter three jurists are very complicated and need particular attention. It is also pertinent to note that no one has explored the views of leading judges and jurists in Pakistan to know …
Review: A Philosophy Of International Law, Frank J. Garcia
Review: A Philosophy Of International Law, Frank J. Garcia
Frank J. Garcia
No abstract provided.
The Search Of A Unifying Theory: Why Pluralism In Public International Law Isn't Such A Bad Thing, Michael Buenger
The Search Of A Unifying Theory: Why Pluralism In Public International Law Isn't Such A Bad Thing, Michael Buenger
Michael Buenger
For well over 200 hundred years with the coining of the term “international law”, the world’s legal and international relations communities have struggled to develop coherent theories and methodologies to explain a phenomenon that is quite different from our concept of law as drawn from our domestic experiences. Over time this quest has produced various schools of thought and methodologies seemingly seeking, in one form or another, the same outcome: a unifying theory of or approach to the legal thinking that undergirds systems of public international law and explains why such systems work or in some cases do not work. …
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall
Brian M McCall
This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.
From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman
From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman
Stephen M. Feldman
This article explains the crucial differences between premodernism and modernism. A distinctive feature of premodernism was an abiding faith in nature or God as a stable and foundational source of meaning and value. When premodernism gave way to modernism, the commitment to foundationalism remained intact. Modernists believed that knowledge must be firmly grounded on an objective foundation. A crucial distinction between modernism and premodernism, however, lay in their respective ideas of foundations. Whereas premodernists readily accepted God and nature as foundational sources for value and knowledge, modernists rejected religious, natural, and other traditional footings and searched for some alternative foundation. …