Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
The Place Of Force In General Jurisprudence, Jeffrey A. Pojanowski
The Place Of Force In General Jurisprudence, Jeffrey A. Pojanowski
Journal Articles
This essay reviews Frederick Schauer’s book, The Force of Law (2015). Schauer argues that coercion is central to legal practice and should be no less important in legal theory. In doing so, Schauer presents formidable challenges to standard versions of legal positivism—and does so from within the positivist framework. Much of Schauer’s criticism on that score is sound. His analysis of the role coercion can play in accomplishing law’s moral tasks is also welcome and important. Nevertheless, Schauer’s jurisprudential framework comes up short in its inability to distinguish law from other social practices that also use force. The Force of …
On The Historical School Of Jurisprudence, Robert E. Rodes
On The Historical School Of Jurisprudence, Robert E. Rodes
Journal Articles
Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …
Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice
Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice
Journal Articles
The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …