Under the influence of a narrowly understood scientific legal positivism, jurisprudence has neglected interdisciplinary research for a long time. However, today there are strong practical and scholarly reasons for an interdisciplinary analysis of law triggered, e.g., by bioethics, life sciences, economics and ecology. And yet the very subject matter of law shimmering between normativity and descriptivity seems to resist all attempts to be taken in by common enterprises across disciplines: How then is the necessary interdisciplinary research in jurisprudence (...) possible without abandoning its core, legal dogmatics? This question was discussed at a special working group during the IVR-World Congress in Cracow. The papers have been polished and updated for publication. The volume falls into two parts: One is directed at the basic conceptual and institutional questions of interdisciplinary research in jurisprudence; the other one concentrates on one fruitful and highly important field of interdisciplinary research, constitutionalism. The volume brings together a truly international and in itself interdisciplinary group of experts in the field, from Finland to Brazil and from Spain to Greece. (shrink)

The dynamic development of science and technology in the last decades has led to new challenges in jurisprudence. This holds for individual fields of doctrinal law as well as the concerned fields of jurisprudence. It is especially significant for the structure of justice, the efficiency of law as a steering instrument of society, and the empirical conditions of legal responsibility. In a jurisprudential perspective, the philosophy of law is rather engaged with the adaptiveness of its traditional principles and (...) categories or the capacity to come to terms with the new developments and less concerned with concrete matters of law. (shrink)

This book's aims are to determine the importance of legal philosophy in legal education and in addition to develop alternative methods for teaching law in general and the philosophy of law in particular. In this context, the individual essays in this volume discuss the alternatives and tendencies in the quest for an adequate model of teaching and learning jurisprudence. Common to all of them is a commitment to the necessary integration of theoretical and practical knowledge, of traditional case and (...) lecture methods with non-traditional models such as cinema, drama, and literature, and of the dominant legal perspective with alternative approaches utilizing information technologies such as computers and the internet. Effective teaching and learning must favor critical and strategic thinking, dialectical and dialogical inquiry or research, problem-solving, role-playing, and skill-developing over mere rote memorization of existing rules and standard answers. (shrink)

In response to the obesity epidemic, much discussion in the public health and child advocacy communities has centered on restricting food and beverage marketing practices directed at children. A common retort to appeals for government regulation is that such advertising and marketing constitutes protected commercial speech under the First Amendment. This perception has allowed the industry to function largely unregulated since the Federal Trade Commission 's foray into the topic, termed KidVid, was terminated by an act of Congress in 1981. (...) The FTC has since focused on self-regulation as a potential solution to such concerns. However, this method of control has proven ineffective to protect children, and has led to growing recognition that federal regulation may be necessary.Since KidVid, the evidence has only mounted that children are uniquely vulnerable to the effects of advertising. Over the same time period, the exposition of commercial speech jurisprudence has plateaued, as the Supreme Court has not decided a pure commercial speech case since 2002. (shrink)

The first collection of essays directed towards jurisprudence with a Hegelian theme. The editors are committed to the idea that Hegel is the future source of great energy and insight within the legal academy.

THE opening paragraph of the Declaration of Independence invokes, as every American should know, "the Laws of Nature and of Nature’s God." The import of this invocation may be discerned by examining the appeals to natural law in the polemical literature of the American revolutionary period against the background of natural law/natural rights philosophy in the seventeenth and eighteenth centuries, on the one hand, and, on the other hand, within the particular historical context of events constituting the American Revolution. The (...) phrase "the Laws of Nature and of Nature’s God" in the Declaration is revealing. It simplifies what had, in earlier times, been referred to as "fundamental law," omitting and de-emphasizing, however, some rather essential elements. Historically, fundamental law had always been esteemed to be a law superior to statutory or positive law. Unless the latter conforms to the former, it is not valid, and invalid positive laws are null and void, so that there is no obligation to obey them. In the history of British jurisprudence, which includes colonial American jurisprudence, fundamental law embraced divine law, natural law, the British constitution beginning with Magna Carta, common law, and the colonial charters. Appeals to fundamental law were made when protesting statutory or positive laws and decrees. Thus the Declaration and Resolves of the First Continental Congress in October, 1774, invokes "the immutable laws of nature, the principles of the British constitution, and the several charters and compacts" as the moral, rational, and ultimate legal basis for protesting alleged British encroachments on American rights. Yet less than two years later, the Declaration of Independence, abandoning the British constitution and dissolving the political band—the charters and compacts—between Great Britain and America, rests simply on "the Laws of Nature and of Nature’s God.". (shrink)

This year is the centenary of the birth of philosopher John Rawls and the semi-centenary of his monumental A Theory of Justice. This essay explores the differences between political opposition and political resistance as reflected in his work. Rawls is remembered for the careful conditions he imposed in the Vietnam-War era upon justifiable civil disobedience in “nearly just” societies. It is less well known that he came to regard the United States as a fundamentally unjust society. The nation has shown (...) itself not merely unserious about political equality—the cornerstone of Rawls’s theory of justice as fairness—but hostile to it. The Supreme Court’s campaign finance jurisprudence sanctifies spending as speech and denies Congress the power to try to level the electoral playing field. In the Supreme Court’s Constitution, substantive political equality is of no value. The upshot is that civil disobedience, conceived as an appeal to a just constitution, is no longer possible in the United States. Political resistance may be permissible, however, within the bounds of right, “in such ways as promise some success.” This essay ekes out Rawls’s suggestive remarks about the justification of political resistance and attempts to extend them to current conditions. (shrink)

The problem of justice lies at the heart of the philosophy of jurisprudence. Then what justice does, the purpose for which a legal system exists, the central principle of jurisprudence, is to provide, for concrete cases, a basis for decisions as to what is just. In the lecture I will first of all deal with Kant's ideas about justice, as shown in his works. They can also be seen as examples of a concept of justice from a previous (...) epoch. The magnitude of these distances will become apparent when one bears in mind what Kant meant, and in what context, when he used this concept. At the same time Kant is the thinker who is most often mentioned in the contemporary discourse on justice. This is for two reasons. Firstly, Kant's position is exemplary for that position that holds that justice is the trancendental centre of any theory of jurisprudence; secondly, Kant is seen as the most significant thinker of that epoch, which is seen as the starting point for the present: the modern European Enlightenment. Finally I would like to contrast the concept of justice which has been developed in this way with the concept that seems fitting for the concrete situation of the Istanbul Congress of 2003. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy, Psychiatry, & Psychology 10.2 (2003) 193-194 [Access article in PDF] A Comment on Christopher Ciocchetti:"The Responsibility of the Psychopathic Offender" Daniel W. Shuman Questions of responsibility for serious harm are complex and potentially divisive. The way in which we frame these questions and the criteria by which we assess answers to them are colored, in part, by the lens though which we view them. I am a law (...) professor whose writings includes issues relating to criminal responsibility of person with mentally disabilities and I come to this commentary from that perspective. For me questions of moral responsibility raise psychological and philosophical, as well as legal, questions.Ciocchetti's (2003) paper addressees the criminal responsibility of the psychopathic offender. Not sure quite what the author meant by this label, I began to try to understand the concept of psychopathic offender by picking up my DSM-IV-TR and found no reference to such a diagnostic category. Absent a handy reference in the DSM, I looked in the paper for some other definition or recognition of the category of psychopathic offender and found no satisfactory grounding in any body of sound research. Left with the author's unsupported assertions that such a category of persons exists and that they behave in ways the author asks me to accept without support, my lawyer instincts cautioned me to proceed carefully. The psychopathic offender the author describes might well exist, but I am not persuaded of that, nor would be my legal colleagues, absent proof.Next, to the author's thesis that "[t]he offender must have the capacities necessary to understand relationships to justify holding that offender responsible" (p. 176) and that because psychopaths lack this capacity they should not be held criminally responsible. Is the author proposing a new test for criminal responsibility? Certainly no test for criminal nonresponsibility based on mental disability (i.e., insanity defense) in Anglo-American jurisprudence, or any other with which I am familiar, makes status (i.e., a diagnostic category) exculpatory for criminal responsibility. Rather, every test addresses the impact of a mental illness or disorder on the cognitive or volitional capacity of the offender at the time of the offense. The author offers no reason to reject the approach taken for the last several hundred years [End Page 193] by Anglo-American jurisprudence. Moreover, to the extent that status or diagnostic category is relevant in the insanity defense in Anglo-American jurisprudence, character or personality disorders (the genus to which I take it that psychopathy belongs) are often specifically excluded from consideration. For example, the Texas Penal Code (Tex. Penal Code Ann. § 8.01 (Vernon 1994)) states that:It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of a severe mental disease or defect, did not know that his conduct was wrong. The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.The federal Insanity Defense Reform Act raises the same issue: The government relies on the legislative history of 18 U.S.C. § 17, which states: "The concept of severity was added to emphasize that non-psychotic behavior disorders or neuroses such as an 'inadequate personality,' 'immature personality,' or a pattern of 'antisocial tendencies' do not constitute the defense.".... The government argues that because Dr. Lorenz would have testified that Salava was not psychotic but suffered from antisocial personality disorder, his testimony was not relevant to either prong of the insanity defense under the statute.... As a general matter, the government's point is well-taken. It seems clear that Congress intended by its inclusion of the modifier "severe" to place certain "disorders" outside the purview of the insanity defense altogether. United States v. Salava, 978 F.2d 320, 323 (7th Cir. 1992) Nowhere in the paper does Chiochetti acknowledge or address these societal judgments of moral responsibility that have already rejected a far more modest version of his proposal in categorically ruling out character or personality disorders from inclusion as... (shrink)

Institutional Review Boards and their federal overseers protect human subjects, but this vital work is often dysfunctional despite their conscientious efforts. A cardinal, but unrecognized, explanation is that IRBs are performing a specific function – the management of risk – using a flawed theoretical and practical approach. At the time of the IRB system’s creation, risk management theory emphasized the suppression of risk. Since then, scholars of governance, studying the experience of business and government, have learned that we must distinguish (...) pure from opportunity risks. Pure risks should be suppressed. Some opportunity risks, in contrast, must be accepted if the institution is to meet its goals. Contemporary theory shows how institutions may make these decisions wisely. It also shows how a sound organizational understanding of risk, a proper locus of responsibility, and appropriate institutional oversight all contribute to effective risk management. We can apply this general theory, developed in other contexts, to the problems of the IRB system. Doing so provides a unifying explanation for IRBs’ disparate dysfunctions by spotlighting five related deficiencies in IRB theory and structure. These deficiencies are inability to focus on greater risks, loss of balanced theory, inaccessibility to guidance from senior leadership, unbalanced federal oversight, and inflexibility. These flaws are deeply rooted in the system, and superficial reform cannot resolve them. Congress should overhaul the system to meet contemporary standards of risk management; this would benefit subjects, scientists, and the public that needs the fruits of research. (shrink)

Analytical jurisprudence and the legal mainstream perceive legal rights in an interactionist fashion, pursuant to a right-obligation duality. The Paper suggests that this is principally because legal positivism and the analytical Anglo-Saxon legal tradition ground their theories on logical positivism and the Wittgensteinian premise that meaning is produced and asserted in social use, i.e. both consensually and contextually. The paper suggests that there is a surplus of meaning which exists beyond social use and which cannot be conceptualized within the (...) sociolinguistic confines of Wittgenstein’s logic of language. This surplus of meaning corresponds to the essential core of legal rights, which, following Aristotle’s induction and philosophy of the essences, constitutes a necessary property and τὸ τί ἦν εἶναι of legal rights, namely a state of affairs or a state of being that cannot be altered without their necessary breach or, indeed, the negation of their very meaning. The Paper discusses the shortcomings of the Wittgensteinian approach and revisits the philosophical foundations of legal rights by employing Aristotle’s induction and theory of the essences, which the Paper connects to the phenomenological method and particularly Ricoeur’s hermeneutics and Husserl’s transcedental phenomenology. This is a process of abstraction and insight, which aspires to induce a rational revisiting of the general theory of legal rights and address the surplus of meaning that Wittgensteinian logic leaves semantically uncovered. (shrink)

In institutional settings affecting the formulation and implementation of international foreign and security policy, nation-states are influenced by Western standards of jurisprudence without explicit concern for religiously grounded legal frameworks. The question at issue here is whether there is a role for Islamic law in the formulation of international law, given recent literature examining this conjunction. For some, cultural symmetry requires attention to Islamic law, e.g., the Islamic law of nations, in the same way Western modernity evolved contemporary international (...) law out of a concept of a “law of nations”. In a historical period of asserted fundamentalist Islamic ideology as well as post-9/11 neo-conservative political ideology, there is ample need for negotiation of culture, including philosophical foundations of law, in which case attention to Islamic jurisprudence may well be a positive development to advance the cause of an evolving international legal order. (shrink)

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty (...) as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent’. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions. (shrink)

In her introduction to this collection, Tymieniecka presents her phenomenology of life - the leitmotif of the three-volume anniversary publication of Analecta Husserliana - as something that stands out from preceding historical attempts to investigate life in an 'integral' or 'scientific' way. After an incubation lasting throughout the 2000 years of Occidental philosophy, this scientific phenomenology/philosophy of life at last uncovers the entire area of the 'inner workings of Nature', exposing the way in which the 'sufficient reason' and the 'ground' (...) of beingness as such crystallise out of the 'onto poietic' process. This onto-poietic process, continuing as it does in the human creative condition, also reveals the authentic genius of the works of the human spirit. This new and original philosophy, free of fallacious simplifications, speculations and reductionism, opens up a basic starting point for all philosophy. Life, 'the theme of our times', at last receives a profound philosophical treatment. (shrink)

Wild Ideas is a collection of essays that brings a fresh and refreshing perspective to the wilderness paradoxically at the center of our civilization.

This collection is the final volume of a four book survey of the state of phenomenology fifty years after the death of Edmund Husserl. Its publication represents a landmark in the comprehensive treatment of contemporary phenomenology in all its vastness and richness. The diversity of the issues raised here is dazzling, but the main themes of Husserl's thought are all either explicitly treated, or else they underlie the ingenious approaches found here. Time, historicity, intentionality, eidos, meaning, possibility/reality, and teleology are (...) the main concerns of this collection devoted to studies in aesthetics, metaphysics and literary interpretation, written by such authors as, among others, R. Cobb-Stevens, C. Moreno Marquez, J. Swiecimski, Sitansu Ray and M. Kronegger. These original studies of phenomenological aesthetics and literary theory by scholars from all parts of the world were gathered by the World Institute for Advanced Phenomenological Research and Learn ing during the year 1988/89 during its assessment of the phenomeno logical movement, fifty years after Husserl's death. IX A -T. Tymieniecka (ed.), Analecta Husserliana, Vol. XXXVII, ix. (shrink)

orbit and far beyond it. Indeed, the immense, painstaking, indefatigable and ever-improving effort of Husserl to find ever-deeper and more reliable foundations for the philosophical enterprise (as well as his constant critical re-thinking and perfecting of the approach and so called "method" in order to perform this task and thus cover in this source-excavation an ever more far-reaching groundwork) stands out and maintains itself as an inepuisable reservoir for philosophical reflec tion in which all the above-mentioned work has either its (...) core or its source. In fact, in his undertaking to re-think the entire philosophical enterprise as such and to recreate philosophy upon what he sought to be at least a satisfactorily legitimated basis, Husserl, through his already systematised and "authorized" work, and his courses, and later on in his spontaneous reflection (which did not find its way into a definitive corpus but was nevertheless sufficiently coherent with his previously established body of thought to be considered a continuation of it), uncovers perspectives upon the universe of man and projects their new philosophical thematisation that brings together all the attempts by philosophers (e. g., Merleau-Ponty, who drew upon this material and found there his own inspiration) who succeeded him with foundational intentions; it also gives a core of philosophical ideas and insights for the youngergenerationofphilosophers today. (shrink)

In this article, we propose a novel account of general jurisprudence by situating it within the broader project of metanormative inquiry. We begin by showing how general jurisprudence is parallel to another well-known part of that project, namely, metaethics. We then argue that these projects all center on the same task: explaining how a certain part of thought, talk, and reality fits into reality overall. Metalegal inquiry aims to explain how legal thought, talk, and reality fit into reality. (...) General jurisprudence is the part of metalegal inquiry that focuses on universal legal thought, talk, and reality. (shrink)

The text includes fragments of his work that have never before been translated.

The well-known classification of legal procedure into “four feet” presents certain conceptual problems for the Indian legal tradition that various Smṛtikāras and commentators have attempted to resolve in different and sometimes contradictory ways. These difficulties arise because the four feet originally referred in Indian legal theory to four distinct, hierarchical legal domains rather than procedural means for reaching a verdict. The earliest attested discussion of the four feet, found in Kauṭilya’s Arthaśāstra, indicates that early legal theorists understood the greater legal (...) order as being comprised of four hierarchical domains and that these domains were ordered by the state as expressed in the original formulation of the four feet. Among the four legal domains, that of vyavahāra was developed by the state itself as a realm of public, transactional law meant to address disputes that could not be resolved in other legal forums. From this we can conclude that the origin of Indian jurisprudence lies with state efforts to formalize and enforce the laws of public transactions. The reinterpretation of the four feet by later jurists was motivated perhaps by resistance to one of the fundamental relationships expressed in the four feet, namely that royal authority possessed the greatest legal authority, independent of Brāhmaṇical law. (shrink)

RésuméCette première étude permet notamment de dégager ce résultat épistémologique: les différentes formes d’“inférence co-relationnelle” connues dans la jurisprudence islamique sous le nom de qiyās représentent une forme innovante et sophistiquée de raisonnement qui permet non seulement d'avoir une conception épistémologique plus claire du raisonnement légal en général, mais aussi de produire une mécanique bien huilée pour le “raisonnement parallèle”; cette mécanique du “raisonnement parallèle” peut être déployée selon un large spectre dans différents cadres de résolution de problèmes et (...) ne semble pas se réduire aux formes standard de l'argumentation analogique étudiées en philosophie des sciences contemporaine. Nous n'aborderons cependant dans la présente étude que le cas de la dénommée “inférence co-relationnelle du facteur occasionnel”, et ce seulement dans le contexte de la jurisprudence islamique. (shrink)