Re-framing discussion of the question, “What is law?“ in terms of the contexts in which the whole question makes sense allows us to see that jurisprudence is about boundary disputes concerning law – that is about what should count as law – and about responses to attacks on the value of law. Concern for these two issues constitutes the boundary challenge perspective. The boundary challenge perspective not only allows us fully to escape essentialism about law, it also provides us with (...) a better understanding of the relationship between the activity of discussing what should count as law and the activity of specifying the law in particular circumstances. The boundary challenge perspective provides a better explanation of that relationship than positivism or natural law. It allows discussion of change and resistance to change without significantly weakening the distinction between “is” and “ought”. It might also form the basis for further historical and sociological studies of law. (shrink)

Re-framing discussion of the question, “What is law?“ in terms of the contexts in which the whole question makes sense allows us to see that jurisprudence is about boundary disputes concerning law – that is about what should count as law – and about responses to attacks on the value of law. Concern for these two issues constitutes the boundary challenge perspective. The boundary challenge perspective not only allows us fully to escape essentialism about law, it also provides us with (...) a better understanding of the relationship between the activity of discussing what should count as law and the activity of specifying the law in particular circumstances. The boundary challenge perspective provides a better explanation of that relationship than positivism or natural law. It allows discussion of change and resistance to change without significantly weakening the distinction between “is” and “ought”. It might also form the basis for further historical and sociological studies of law. (shrink)

Analyse dans la perspective phénoménologique de l'essence comme expression de "l'être" différent de l'"étant". Substitution, dans la subjectivité, de soi à autrui.

The idea for _Philosophy in a Time of Terror_ was born hours after the attacks on 9/11 and was realized just weeks later when Giovanna Borradori sat down with Jürgen Habermas and Jacques Derrida in New York City, in separate interviews, to evaluate the significance of the most destructive terrorist act ever perpetrated. This book marks an unprecedented encounter between two of the most influential thinkers of our age as here, for the first time, Habermas and Derrida overcome their mutual (...) antagonism and agree to appear side by side. As the two philosophers disassemble and reassemble what we think we know about terrorism, they break from the familiar social and political rhetoric increasingly polarized between good and evil. In this process, we watch two of the greatest intellects of the century at work. (shrink)

"In her introduction, Borradori contends that philosophy has an invaluable contribution to make to the understanding of terrorism. Just as the traumas produced by colonialism, totalitarianism, and the Holocaust wrote the history of the twentieth century, the history of the twenty-first century is already signed by global terrorism. Each dialogue here, accompanied by a critical essay, recognizes the magnitude of this upcoming challenge. Characteristically, Habermas's dialogue is dense, compact, and elegantly traditional. Derrida's, on the other hand, takes the reader on (...) a long, winding, and unpredictable road. Yet unexpected agreements emerge between them: both have a deep suspicion of the concept of "terrorism" and both see the need for a transition from classical international law, premised on the model of nation-states, to a new cosmopolitan order based on continental alliances.". (shrink)

This book argues that the institutions of law, and the structures of legal thought, are to be understood by reference to a moral ideal of freedom or independence from the power of others. The moral value and justificatory force of law are not contingent upon circumstance, but intrinsic to its character. Doctrinal legal arguments are shaped by rival conceptions of the conditions for realization of the idea of law. In making these claims, the author rejects the viewpoint of much contemporary (...) legal theory, and seeks to move jurisprudence closer to an older tradition of philosophical reflection upon law, exemplified by Hobbes and Kant. Modern analytical jurisprudence has tended to view these older philosophies as confused precisely in so far as they equate an understanding of law's nature with a revelation of its moral basis. According to most contemporary legal theorists, the understanding and analysis of existing institutions is quite distinct from any enterprise of moral reflection, but the relationship between ideals and practices is much more intimate than this approach would suggest. Some institutions can be properly understood only when they are viewed as imperfect attempts to realize moral or political ideals; and some ideals can be conceived only by reference to their expression in institutions. (shrink)

This is a pugnacious book, born of ancient controversy and attempting to return the debate to a time before the central jurisprudential questions were set by Hart and other legal positivists. Simmonds addresses those familiar with current analytical philosophy of law: those of us who know our Hart, Fuller, Dworkin, Raz, MacCormick and Kramer, and who perhaps need to have our attention drawn to Plato, Aristotle, Grotius, Hobbes and Kant. Presuming an informed readership, there is no bibliography, and it incorporates (...) ‘substantial extracts from four recent essays’, but does not say what they are. Overall, his position is that law should be understood as an attempt to realize an archetype of law, an archetype which is a moral ideal. Those suspicious of moral ideals are not likely to find moral archetypes more philosophically acceptable. Yet, if Simmonds is right, we need them in jurisprudence.Simmonds is against the positivist split between …. (shrink)

Tthis book is likely to receive its warmest reception form advanced students of the philosophy of law, who will welcome the relief provided from the frequently sterile tone of much recent work in the field.

The argument of this article is that the dual-nature thesis is not only capable of solving the problem of legal positivism, but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation (...) to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real “ought” and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law. (shrink)

All of these essays focus on the concept of modernity in the philosophical work of Jurgen Habermas - an ambitious and carefully argued intellectual project that invites, indeed demands, rigorous scrutiny. Following an introductory overview of Habermas's work by Richard Bernstein, Albrecht Wellmer's essay places the philosopher within the tradition of Hegel, Marx, Weber, and Critical Theory. Martin Jay discusses Habermas's views on art and aesthetics, and Joel Whitebook examines his interpretations of Freud and psychoanalysis, Anthony Giddens offers a critical (...) reading of Habermas's major work, "The Theory of Communicative Action. Richard Rorty criticizes the whole thrust of his program by way of a comparison with the work of the French philosopher of postmodernity, Jean-Francois Lyotard. And Thomas McCarthy concentrates on the question of the selectivity of rationalization processes in the modern age. Habermas himself has three contributions - on Marcuse, on neoconservativism, and a reply to the other essayists. Richard J. Bernstein is T. Wistar Brown Professor of Philosophy at Haverford College. He was editor of the journal "Praxis International, in which these essays recently appeared. "Habermas and Modernity "is included in the series Studies in contemporary German Social Thought, edited by Thomas McCarthy. (shrink)

Der kommunikativen Alltagspraxis müssen kognitive Deutungen, moralische Erwartungen, Expressionen und Wertungen einander durchdringen. Die Verständigungsprozesse der Lebenswelt bedürfen deshalb einer kulturellen Überlieferung auf ganzer Breite, nicht nur der Segnungen von Wissenschaft und Technik. So könnte die Philosophie ihren Bezug zur Totalität in einer der Lebenswelt zugewandten Interpretenrolle aktualisieren. Sie könnte mindestens dabei helfen, das stillgestellte Zusammenspiel des Kognitiv-Instrumentellen mit dem Moralisch-Praktischen und dem Ästhetisch-Expressiven wie ein Mobile, das sich hartnäckig verhakt hat, wieder in Bewegung zu setzen.

Jules Coleman, one of the world's leading philosophers of law, here presents his most mature work so far on substantive issues in legal theory and the appropriate methodology for legal theorizing. In doing so, he takes on the views of highly respected contemporaries such as Brian Leiter, Stephen Perry, and Ronald Dworkin.

This volume of essays traces the history of jurisprudence from classical times, and examines various interpretations of written laws.

This work analyzes the range of philosophical theories of truth, as applied to legal norms, paying particular attention to the distinction between ontological and criteriological definitions. The author reviews correspondence, coherence, consensus and procedural theories, and explores their role in major contemporary accounts of legal argument, particularly those of Habermas, Alexy, Aarnio, Peczenik and Dworkin.

The book carries on Posner's project of analyzing the law as an institution of social governance.

How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are (...) consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law. (shrink)

The author, in this series of essays, depicts the law as an essentially literary, rhetorical, and ethical activity. The topics discussed include a talk to students entering law school, describing the intellectual activity of the law, an exploration of the structure of legal thought and expression, and a dialogue which explores the ethics of argument.

At the heart of this book is the age-old question of how law and morality are related. The legal positivist, insisting on the separation of the two, explicates the concept of law independently of morality. The author challenges this view, arguing that there are, first, conceptually necessary connections between law and morality and, second, normative reasons for including moral elements in the concept of law. While the conceptual argument alone is too limited to establish a sufficiently strong connection between law (...) and morality, and the normative argument alone fails to address the nature of law, the two arguments together support a nonpositivistic concept of law, toppling legal positivism qua comprehensive theory of law. (shrink)