Matthew Hale: on the Law of Nature, Reason, and Common Law

Selected Jurisprudential Writings

Author: Gerald J. Postema

Publisher: N.A

ISBN: 9780199234929

Category: Law

Page: 256

View: 2232

DOWNLOAD NOW »

Lawyer, judge, public figure, historian, theologian, and amateur natural philosopher, Sir Matthew Hale worked and wrote in the middle decades of the seventeenth century, perhaps the most turbulent period of English political history. His reflections on reason, law, and political authority,unpublished in his lifetime, are collected in this volume. It sets Hale's previously unpublished Treatise on the Nature of Laws in General and touching the Law of Nature and his "Reflections on Mr Hobbes his Dialogue of the Laws" in context of other key works of legal and constitutional theory. TheTreatise reveals a complex general understanding of law and of moral and legal reasoning. "Reflections" brings these general considerations to bear on English law, in his critical response to Hobbes's all-out attack on common-law jurisprudence. "Reflections" suggests a conception of judicialreasoning, and a view of political authority, that deepens the view Hale defends in the longer and more systematic work. His views on practical reasoning are elaborated and related explicitly to the discipline of law in his "Preface to Rolle's Abridgement" and in parts of his History of the CommonLaw. In the Treatise, Hale argues that human law is necessarily instituted in the practices and customs of specific communities, manifesting their consent; this view is enriched and deepened in the History and "Considerations touching Amendment of the Law". His views on the foundations of politicalauthority, sounded in the Treatise, are argued at length in Prerogatives of the King and "Reflections". "Reflections" argues for necessary legal limits of ruling power and Prerogatives offers a systematic discussion of the nature and limits of political authority. Taken together, these writingsoffer a rich and subtle articulation of a classical common-law understanding of law, reason and authority. Gerald J. Postema present these seminal writings in a modernized text for readers from philosophy, law, political theory, or intellectual history. He contributes an extended introduction setting out the theoretical and historical context of the works.

A Treatise of Legal Philosophy and General Jurisprudence

Volume 11: Legal Philosophy in the Twentieth Century: The Common Law World

Author: Gerald J. Postema

Publisher: Springer Science & Business Media

ISBN: 9048189608

Category: Philosophy

Page: 618

View: 3717

DOWNLOAD NOW »

Volume 11, the sixth of the historical volumes of A Treatise of Legal Philosophy and General Jurisprudence, offers a fresh, philosophically engaged, critical interpretation of the main currents of jurisprudential thought in the English-speaking world of the 20th century. It tells the tale of two lectures and their legacies: Oliver Wendell Holmes, Jr.’s “The Path of Law” (1897) and H.L.A. Hart’s Holmes Lecture, “Positivism and the Separation of Law and Morals” (1958). Holmes’s radical challenge to late 19th century legal science gave birth to a rich variety of competing approaches to understanding law and legal reasoning from realism to economic jurisprudence to legal pragmatism, from recovery of key elements of common law jurisprudence and rule of law doctrine in the work of Llewellyn, Fuller and Hayek to root-and-branch attacks on the ideology of law by the Critical Legal Studies and Feminist movements. Hart, simultaneously building upon and transforming the undations of Austinian analytic jurisprudence laid in the early 20th century, introduced rigorous philosophical method to English-speaking jurisprudence and offered a reinterpretation of legal positivism which set the agenda for analytic legal philosophy to the end of the century and beyond. A wide-ranging debate over the role of moral principles in legal reasoning, sparked by Dworkin’s fundamental challenge to Hart’s theory, generated competing interpretations of and fundamental challenges to core doctrines of Hart’s positivism, including the nature and role of conventions at the foundations of law and the methodology of philosophical jurisprudence.

Handbook of Legal Reasoning and Argumentation

Author: Giorgio Bongiovanni,Gerald Postema,Antonino Rotolo,Giovanni Sartor,Chiara Valentini,Douglas Walton

Publisher: Springer

ISBN: 9048194520

Category: Philosophy

Page: 764

View: 2794

DOWNLOAD NOW »

This handbook addresses legal reasoning and argumentation from a logical, philosophical and legal perspective. The main forms of legal reasoning and argumentation are covered in an exhaustive and critical fashion, and are analysed in connection with more general types (and problems) of reasoning. Accordingly, the subject matter of the handbook divides in three parts. The first one introduces and discusses the basic concepts of practical reasoning. The second one discusses the general structures and procedures of reasoning and argumentation that are relevant to legal discourse. The third one looks at their instantiations and developments of these aspects of argumentation as they are put to work in the law, in different areas and applications of legal reasoning.

Report

Author: National Humanities Center (U.S.)

Publisher: N.A

ISBN: N.A

Category: Education

Page: N.A

View: 9516

DOWNLOAD NOW »

Bentham and the Common Law Tradition

Author: Gerald J. Postema

Publisher: Oxford University Press, USA

ISBN: 9780198256519

Category: Science

Page: 490

View: 5040

DOWNLOAD NOW »

The debate between Bentham and classical Common Law theory is philosophically fundamental and has shaped contemporary conceptions of the nature, tasks, and limits of law and adjudication. This book offers a philosophical interpretation of this historical debate.

A Treatise of Legal Philosophy and General Jurisprudence

Vol. 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics; Vol. 7: The Jurists' Philosophy of Law from Rome to the Seventeenth Century; Vol 8: A History of the Phil. of Law in the Common Law World, 1600-1900.

Author: Michael Lobban

Publisher: Springer Science & Business Media

ISBN: 9781402049507

Category: Law

Page: 948

View: 4447

DOWNLOAD NOW »

This comprehensive treatment of legal philosophy and general jurisprudence is designed for jurists as well as legal and practical philosophers. The treatise is presented in two sections: The 5-volume Theoretical part (2005) covers topics of contemporary debate; The 6-volume Historical part (2006-2007) traces the development of legal thought from ancient Greece through the twentieth century. This release incorporates Vol. 6: A History of the Philosophy of Law from the Ancient Greeks to the Scholastics; Vol. 7: The Jurists' Philosophy of Law from Rome to the Seventeenth Century; and Vol 8: A History of the Philosophy of Law in the Common Law World, 1600-1900.

The Nature and Authority of Precedent

Author: Neil Duxbury

Publisher: Cambridge University Press

ISBN: 1139470973

Category: Law

Page: N.A

View: 5334

DOWNLOAD NOW »

Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.

Jurisprudence Or Legal Science?

A Debate about the Nature of Legal Theory

Author: Sean Coyle,George Pavlakos

Publisher: Hart Publishing

ISBN: 1841135046

Category: Law

Page: 174

View: 1160

DOWNLOAD NOW »

Modern jurisprudence embodies two distinct traditions of thought about the nature of law. The first adopts a scientific approach which assumes that all legal phenomena possess universal characteristics that may be used in the analysis of any type of legal system. The main task of the legal philosopher is to disclose and understand such characteristics, which are thought to be capable of establishment independently of any moral or political values which the law might promote, and of any other context-dependent features of legal systems. Another form of jurisprudential reflection views the law as a complex form of moral arrangement which can only be analyzed from within a system of reflective moral and political practices. Rather than conducting a search for neutral standpoints or criteria, this second form of theorizing suggests that we uncover the nature and purpose of the law by reflecting on the dynamic properties of legal practice. Can legal philosophy aspire to scientific values of reasoning and truth? Is the idea of neutral standpoints an illusion? Should legal theorizing be limited to the analysis of particular practices? Are the scientific and juristic approaches in the end as rigidly distinct from one another as some have claimed? In a series of important new essays the authors of Jurisprudence or Legal Science? attempt to answer these and other questions about the nature of jurisprudential thinking, whilst emphasizing the connection of such 'methodological' concerns to the substantive legal issues which have traditionally defined the core of jurisprudential speculation.

The Honourable Roger North, 1651–1734

On Life, Morality, Law and Tradition

Author: Jamie C. Kassler

Publisher: Routledge

ISBN: 1317028597

Category: History

Page: 488

View: 4134

DOWNLOAD NOW »

Roger North is known today as a biographer and writer on music, architecture and estate management. Yet his writings, including thousands of pages still in manuscript, also contain critical reflections about intellectual and social changes taking place in England. This feature is little recognised, because North's reputation as an author was formed between 1740 and 1890, when seven of his manuscripts were published in editions that drastically altered his original texts, and when the reception of these works was influenced by 'Whig' criticism. Although some of North's writings were later edited according to more rigorous standards, many critics still utilise the discredited editions and continue to repeat 'Whig' stereotypes of North. Eschewing such stereotypes, Jamie C. Kassler provides the first interpretation of North's philosophy by retrieving what is consistent in his pattern of thought and by analysing some of his practices and purposes as a writer. By these methods, she shows that North, a common lawyer by profession, combined the moral scepticism of Montaigne with the legal philosophy of Coke, Selden and Hale. The result was a sceptical philosophy that accounts for North's critical reflections on the dogmatism of natural-law doctrine, both in its medieval intellectualist version and in its voluntarist reformulation that began with Grotius and was developed by Hobbes, Pufendorf and Locke. Kassler bases her interpretation on a wide range of North's writings, even those in which one might least expect to find a philosophy. In addition, one of his manuscripts, which is edited here for the first time, includes an exposition of his jurisprudence, as well as his attempt to bring England's past into the legal tradition. These features form part of North's broader argument that language, including the language of law, is the invention of humans and a representation of their changing history and habits, an argument that he later extended to musical 'language' in his more finished essay, 'The Musicall Grammarian' (1728).

Jurisprudence

Author: Suri Ratnapala

Publisher: Cambridge University Press

ISBN: 1139477862

Category: Law

Page: N.A

View: 5323

DOWNLOAD NOW »

Jurisprudence is about the nature of law and justice. It embraces studies and theories from a range of disciplines such as history, sociology, political science, philosophy, psychology and even economics. Why do people obey the law? How does law serve society? What is law's relation to morality? What is the nature of rights? This book introduces and critically discusses the major traditions of jurisprudence. Written in a lucid and accessible style, Suri Ratnapala considers a wide range of views, bringing conceptual clarity to the debates at hand. From Plato and Aristotle to the medieval scholastics, from Enlightenment thinkers to postmodernists and economic analysts of law, this important volume examines the great philosophical debates and gives insight into the central questions concerning law and justice.

The Equitable Jurisdiction of the Court of Chancery

Comprising the Rise, Progress, and Final Establishment of the Modern Jurisdiction of the Court of Chancery, to which is Prefixed, a Concise Summary of the Leading Principles of the Common Law, So Far as Regards Property, Real and Personal, and a Short Account of the Judicial Institutions of England

Author: George Spence

Publisher: N.A

ISBN: N.A

Category: Equity

Page: N.A

View: 7889

DOWNLOAD NOW »

Hobbes and the Law

Author: David Dyzenhaus,Thomas Poole

Publisher: Cambridge University Press

ISBN: 1139576941

Category: Law

Page: N.A

View: 7090

DOWNLOAD NOW »

Hobbes's political thought provokes a perennial fascination. It has become particularly prominent in recent years, with the surge of scholarly interest evidenced by a number of monographs in political theory and philosophy. At the same time, there has been a turn in legal scholarship towards political theory in a way that engages recognisably Hobbesian themes, for example the relationship between security and liberty. However, there is surprisingly little engagement with Hobbes's views on legal theory in general and on certain legal topics, despite the fact that Hobbes devoted whole works to legal inquiry and gave law a prominent role in his works focused on politics. This volume seeks to remedy this gap by providing the first collection of specially commissioned essays devoted to Hobbes and the law.

The Human Relationship to Nature

The Limit of Reason, the Basis of Value, and the Crisis of Environmental Ethics

Author: Matthew R. Foster

Publisher: Lexington Books

ISBN: 073916497X

Category: Philosophy

Page: 490

View: 5696

DOWNLOAD NOW »

Growing alarm over the harm done by humans to the natural world, and even to the viability of our own industrial civilization, compels us to ask the deeper moral question: What should be the human relationship to nature? Matthew R. Foster starts by assessing three contrasting patterns of moral reasoning: the Progress Ethic that created the world we live in; the biblically-inspired Stewardship Ethic; and the Connection Ethic based on scientific understanding of the interdependence of all natural entities. Critical analysis reveals that none of these ethics is able to sustain the values it advocates due to two unsupportable presumptions—that the norms of human morality are commensurate with the natural world, and that the value of an entity is an intrinsic property. Foster argues that in order for a future environmental ethic to be both logically coherent and environmentally constructive, it must start from unconventional notions. First, because nature will never be commensurate with human moral reasoning, non-rational resources must be employed despite the risks involved. Second, value resides in the relationship of one entity to another, and does not belong intrinsically to either—in short, value is foremost a verb, rather than a noun. Foster proposes a new paradigm attentive to the realm of value relations among all natural entities, one which offers mediating opportunities between nature and morality. In this new ethic there are no “shoulds.” Rather, moral responsibilities to the natural entities around us are elective, placing us in an unfamiliar yet potentially liberating network of relationships. This book will be of interest to scholars—both instructors and students—of environmental ethics, philosophy, religion, and intellectual history, and all who are concerned about the environmental challenges of our time.

Common Law Theory

Author: Douglas E. Edlin

Publisher: Cambridge University Press

ISBN: 1139465694

Category: Law

Page: 247

View: 1981

DOWNLOAD NOW »

In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world.