Why, then, has Anglo-American jurisprudence remained staunchly indifferent to history? How has it been able to maintain its confident assumption that the analytical and the historical can be neatly...

This essay will employ theoretical tools from the Austrian school of economics in order to study law as a social system and develop a more accurate comprehension of its functions and of the evolutionary processes to which it is subject. By building up from Hayek’s theories of institutions and complex phenomena, both of which emphasize the “spontaneous” nature of social phenomena vis-à-vis proposals of conscious “steering” by means of central planning, we’ll try to show how neoclassical approaches to legal theory (...) are based on unrealistic assumptions about human cognition and, as such, turn out to be a subclass of the so-called “constructivist” thought, severely criticized by Hayek in his works. At the end of the article, we’ll discuss in passing some internal difficulties with the Hayekian approach itself. (shrink)

Hans Kelsen is renowned in the world of legal philosophy as one of the most important legal scholars of the 20th century and his most important work which brought him this renown, Pure Theory of Law, is therefore ‘world famous’. However, he is less well known as a legal pacifist and his main writings on law and peace, such as Peace through Law, are very rarely studied and almost never considered in relation to his Pure Theory of Law. Even the (...) more recent studies of Kelsen’s theory of democracy, which increased familiarity with Kelsen as an advocate of democracy and actually looked at his political work in the light of the Pure Theory of Law, contain almost no systematic or critical consideration of the value of peace, although both Kelsen’s legal theory and his theory of democracy at least give cause for this. Whereas other studies have already made the connection between the concepts of law and democracy in Kelsen’s work, this thesis concentrates on the concepts – also closely connected in his work – of law and peace. With this new approach this thesis hopes to contribute to a re-evaluation of Kelsen’s positivist legal philosophy by showing that the undervalued yet essential aspect of his legal pacifism can be understood as the tacit, ethical meaning of the Pure Theory of Law. (shrink)

Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas insofar as they are enacted within counter-hegemonic cognitive frames towards the construction of “subaltern human rights”. Others, however, have pointed out that the human rights institutional and political hegemony makes other valuable emancipatory strategies less available, and that this foregrounds problems of participation and procedure at the expense of distribution. Finally, others have explained how the abstractedness of the category entails a de-politicization or (...) an emptiness that, of course, can be filled by progressive activism, but whose substance is easily reappropriated by those in power. By engaging with the above-mentioned perspectives, and following the decolonial approach, I suggest that the category human rights can be decolonized and being used for progressive agendas only after a comprehensive critique of liberal legality has been performed. (shrink)