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Full-Text Articles in Law
Introduction To The Theory Of Law: History And The Unity Of Legal Things, John Lunstroth
Introduction To The Theory Of Law: History And The Unity Of Legal Things, John Lunstroth
John Lunstroth
I propose a general theory of the law. I begin with the history of the western legal tradition. When tracing laws, or legal things, over long periods of time it is apparent that the positivist theory is inadequate to describe law. Natural law similarly fails to explain what is seen in the historical record. I suggest an historicist theory best describes the law when seen as a conceptual and historical whole. I then identify a fundamental break in the historical record, the Enlightenment, when the scientific worldview became dominant. The scientific gaze splits nature (including law) into two parts, moral …
The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth
The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth
John Lunstroth
Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea. My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, …
The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth
The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth
John Lunstroth
Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea. My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, …
The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth
The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth
John Lunstroth
The scientific revolution (or radical Enlightenment) distorted the way we understand the law by causing legal concepts, such as the idea of state, to be split into a scientific (positivist) part and a prudential (moral) part. The Unity Thesis gives us tools for understanding the mechanisms by which that happened and for mapping routes to the future that may be better for everyone. I illustrate using the US Constitution. The idea of the constitution we receive is already a scientific concept, originating in the ideas of state and common good that prevailed well into the 17th century. On the one …
History And The Characterization Of Law: Just War And Other Legal Things In The Age Of Positivism, John Lunstroth
History And The Characterization Of Law: Just War And Other Legal Things In The Age Of Positivism, John Lunstroth
John Lunstroth
If what is important in our affairs is that we know the truth, then are there present things about which we must know the past in order to know the truth? I argue there are, and that one category of those things is legal things, the law. By law I mean political theory, justice, right, rights, positive law and ethics; and all of the various ways those things have been understood by jurists. The way we reason about the law radically changed in the Enlightenment. By the end of the 18th century science and positivism as general methods of reason …