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Jurisprudence - From the Greeks to Post-Modernism by Wayne Morrison is a challenging book on jurisprudence which begins by posing questions in the post-modern context,and then seeks to bridge the gap between our traditions and contemporary situation. It offers a narrative encompassing the birth of western philosophy in the Greeks and moves through medieval Christendom, Hobbes, the defence of the common law with David Hume, the beginnings of utilitarianism in Adam Smith, Bentham and John Stuart Mill, the hope for enlightenment with Kant, Rousseau, Hegel and Marx, onto the more pessimistic warnings of Weber and Nietzsche. It defends the work of Austin against the reductionism of HLA Hart, analyses the period of high modernity in the writings of Kelsen, Hart and Fuller, and compares the different approaches to justice of Rawls and Nozick. The liberal defence of legality in Ronald Dworkin is contrasted with the more disillusioned accounts of the critical legal studies movement and the personalised accounts of prominent feminist writers. Jurisprudence - From the Greeks to Post-Modernism by Wayne Morrison is one of the best and the most well written books on jurisprudence. The writer starts from the Greek philosophy from Plato to Aristotle and covers Thomas Hobbe, Saint Thomas Aquinas and the German Transcendental idealism of Immanuel Kant. All schoosl of jurisprudence are well explained and analyzed.
Contents
Preface
I. The Problem of Jurisprudence, or Telling the Truth of Law: an entry into recurring questions?
The scope of jurisprudence, or what is involved in asking ‘what is law’?
The need for reflexivity?
Legal positivism as the dominant tradition in the jurisprudence of modernity
Although legal positivism has dominated modern perspectives there is currently a post-positivist plurity of perspectives: this is the problem of asking the law question in post-modernity
Confronting post-modernity: from Dworkin to Blade Runner
Is it possible to believe in a jurisprudence which could tell a true story of law’s empire in post-modernity? Or is post-modernity a loss of faith in coherent narratives, progress and the possibility of justice?
The problem of offering coherent narratives in the pluralist and diverse conditions of late-modernity or post-modernity
The particular problematic of analysing law in the conditions of post-modernity
II. Origins: Classical Greece and the idea of Natural Law
Part One – Law and the Existential Question
Asking the basic questions, or becoming aware of the existential foundations of law
The physical and existential aspects of social existence
Intellectual thought begins in myth and the mystery of the holy
The existential problem reflected in Greek literature and philosophy: the example of Antigone
Interpretations of the legal tensions in Antigone
Part Two – The Context for the Natural Law of the Classical Greeks
The existential location of the beginning of classical Greek philosophy: the natural dependency of early mankind
The context for classical Greek philosophy was the development of the city-state
The practical nature of Greek philosophy: Plato’s writings founded on the desire to find a place from which to criticise the conventions of the social order
Plato’s myth of emancipation through truth: the simile of the cave
Part Three – Plato’s Jurisprudence
The Platonic conception of justice as evidenced in the republic
The role of education into the ‘truth’
The underlying stress upon unity of social purpose
The more pragmatic approach of The Laws
Concluding reflections on Plato’s conceptualism: does he offer ideals of reality, or imaginative creations?
Part Four – The Jurisprudence of Aristotle
Aristotle and the ethics of natural ends
Happiness as the final end of human life
The situation of human choice
Justice as a function of the relative size of the social body
The empirical mode of identifying natural law
III. The Laws of Nature, Man’s Power and God: the synthesis of mediaeval Christendom
The rise of universalism with the dedine of the Greek city-states
The philosophy of stoicism
The idea of mankind as players in cosmic drama
The retort of the sceptics to the claims of knowledge to guide human affairs
The approach of the Roman statesman Cicero (of Arpinum, 106-43BC)
The ambiguous relationship of man to nature and a growing desire to develop technological power over nature
The retort of Augustine and the development of a theological natural law
The narratives of travelling and platonic asceticism in Augustine’s natural order
The ideas of love and grace
Justice and natural law
Augustine’s idea of social existence as divided between ‘two cities’ and his philosophy of history
St Thomas Aquinas: the Thomistic doctrine as the high point of the scholastic system of medieval philosophy
Aquinas’ ideas of the ends of man and the natural law
The interconnection of eternal, natural, human and divine law
The Thomistic conception of the state
A critical note on the mystification of natural law and its relationship to existential security
IV Thomas Hobbes and the Origins of the Imperative Theory of Law: or mana transformed into earthly power
The divided attention of man in the mediaeval tradition: should man look to control the events of this world or seek salvation in the ‘other’ world of God’s love?
The usurper Machiavelli: an early attempt to break the religious conception of natural law
The Elizabethan image of the cosmos as a settled chain of being
The dialectic of fear and power when the mediaeval view was unsettled
The power relationship inherent in natural religion contrasted with the power of knowledge
The role of power and knowledge in the work of Francis Bacon: knowledge gives power, but real knowledge only comes from the empirical method
The contrasting approach of Descartes: the test of scepticism and the task of building a rationalist structure upon indubitable truths
The power these approaches gave to the human agent was in sharp contrast to the idea of dependency inherent in the mystical experience of the sacred
Hobbes conceives of a deal with God whereby the cosmos is divided into the realms of an earthly sovereign and an ecclesiastical sovereign
In the Leviathan, Hobbes proposes that power gives knowledge, and the secret of social order is to control the interpretation of the social body
Hobbes’s secular natural law or ‘the natural rules of the human condition’
Hobbes’s solution to the problems of the natural condition: the creation of the sovereign: an artificial being, a mortal god
Law as the command of the sovereign reinforced by power
To found modernity, mankind’s attention must be focused upon progress and fears of this world, or the need to control eschatology
Conclusion: understanding the dilemma and the legacy Hobbes leaves us with
V. David Hume – Defender of Experience and Tradition Against the Claims of Reason to Guide Modernity
Understanding Hume: a note on the literature
Hume’s relevance for jurisprudence lies partly in his defence of tradition and experience which were implicitly under attack by the Hobbesian legacy
Emerging methodological concepts for understanding human sociality: individualism versus holism
Hume denies that we can understand the totality of existence through our use of reason alone, and hints at a structural-functional account of the social body in which tradition and experience are the important aspects of social progress
The result of our search for the basis of the modern individual subject is uncertainty and confusion, rather than a secure foundation
Climbing out of the void underlying the new start of modernity
The pragmatism of Hume’s return to the common life
The role of memory and of the narratives of social life
The argument for demarcating facts and values, and building an idea of moral relations upon our knowledge of the real facts of natural history and the operation of the world
The supposition of a beneficent nature which works by gradual accumulation
Our view of justice ought to be built upon the conditions necessary to develop society given the natural condition of man
Social institutions discipline mankind into settled habits of behaviour
Is philosophy or moral theory redundant? Ought the philosophy of right and wrong to be replaced by the empirical analysis of natural utility?
VI. Immanuel Kant and the Promotion of a Critical Rational Modernity
Purity and autonomy as the principles of the modern
Answering Hume
The principle of rational autonomy would be the guide for modernity
Recognising the types of knowledge, each with different fundamental presuppositions
The rationality of morality and the defence of the view of man as a free individual, presupposed in law
Defining the ontology of the rational agent
Contrasting the right to the good
Kant on describing the journey of mankind
The journey of the whole
VII. From Rousseau to Hegel: the birth of the expressive tradition of law and the dream of Law’s Ethical Life
Part One – The Ambiguous Romanticism of Rousseau and the Expressive Idea of the Social Contract
Modernity: an uncertain context for legitimating social institutions
The social contract
The idea of general will
Interpreting Rousseau’s message
Part Two – Frederick Hegel: The Philosophy of Total Reconciliation and the Search for Law’s Ethical Life
Hegel: reconnecting the dualism of this human condition into the totality of this world
Freedom as a key criterion for modernity
The state must reflect our need for a moral social order
The constitutional state is an historical development which must be understood and controlled by reference to the conceptual tools of historical understanding and our reading of history as the unfolding of an ethical social life
The ambivalence of Hegel’s picture: romanticism and warning
The sovereign will, or the nature of the will of the sovereign
The social role and limits of modern knowledge
The dialectics of modernity: action, hope and destruction
Concluding summary: Hegel and the dream of a full modernity
VIII. Adam Smith, Jeremy Bentham and John Stuart Mill: the early development of a utilitarian foundation for law
Part One – Industry, Capitalism and the Justice of the Hidden Hand of the Market: The Work of Adam Smith
Understanding the moral foundation for Adam Smith’s proposal of the hidden hand of the market
Developing the idea of sympathy
Is there any absolute guarantee for Smith’s idea of sympathy and the impartial spectator?
The role of positive law and punishment in guaranteeing modern ‘commercial’ society
Part Two – Jeremy Bentham (1748-1832) and the Origins of Modern Utilitarian Jurisprudence
Utility proposed as the fundamental principle for a new science of morality
Can the principle of utility be proved? Or has Bentham assumed its validity?
Law as the instrument of utilitarian reform
The role of sanctions
The pleasure-pain calculus
The object or purpose of law
The centrality of punishment
Bentham’s limited radicalism is shown in his ideas of reform which were in the interests of good order and the protection of property
The trap of the panopticon
The dual images of visibility and control inherent in utilitarianism
Part Three – John Stuart Mill: The Reform of Utilitarianism and the Development of the Principle of Liberty
Understanding the context of John Stuart Mill’s humanising of classical Benthamite utilitarianism
On Liberty, and the search for the first principle to guide policy
The complex interaction between the liberty principle and general utilitarianism
The end product of the interaction of liberty and utility is social progress
The respective roles of written or state law and unwritten law and the need for tolerance
Can the boundaries of harm and offence be easily drawn?
Mill’s optimism concerning modernity
What of the idea of a science of society? Does the liberty principle mean that no secure science is possible? The search for truth provides the model for the open society
Liberal philosophy needs to be complemented with historical and sociological understanding
IX. John Austin and the Misunderstood Birth of Legal Positivism
Introduction: the modernity of John Austin’s jurisprudence
Part One – Rescuing Austin from the Commentators
Who is the John Austin of jurisprudence texts?
Aspects of the usual treatment of Austin
Rereading Austin as an analytical positivist: do we need to consider Austin’s overall project to appreciate his analytical distinctions?
Austin’s concepts are part of an overall synthesis
What is the epistemological basis of Austin’s analysis: is he a simple conceptual positivist, an empiricist, or a sociologist?
Excursus upon the relationship of positivism and Austinian legal positivism
Part Two – Understanding the Structure of Austin’s Jurisprudence
The definition of law
Law is both a creation of and constitutive element in civilisation
The relationship of power and superiority
Utility is the key principle of social justice
The concept of sovereignty
While the sovereign is not legally limitable, it is answerable to positive and critical morality (particularly the principle of utility)
The issue of international law
The role of judicial law-making
Part Three - Conclusion
The suffocating nature of the traditional interpretation of Austinian positive jurisprudence
The problem of Austin’s inability to rewrite his lectures
X. Karl Marx and the Marxist Heritage for Understanding Law and Society
Marxism as hope and transcendence
Introduction to Marxist theorising: the dialectic of the universal and the particular
One appeal of Marx’s theory was his narrative of history
Marxism as praxis
Caveats for understanding the role of a Marxist jurisprudence
An outline of the development of Marx’s legal thought
The statement of the scientific foundation of the later Marx
Aspects of Marxist methodology
The state
Marx on the empirical legal order and (social) justice
Does the legacy of Marxism doom us to pessimistic accounts of the legal order in which entities such as rights are mere power expressions?
Law as constitutive regulation
The Marxist search for justice is a struggle against inhumanity and exploitation
What relevance is there for the legacy of Marx after the collapse of Marxism?
The post-capitalist order?
XI. Weber, Nietzsche and the Holocaust: towards the disenchantment of modernity
Part One – Max Weber (1864-1920): Legal Domination and the Dialectic of Rationalisation - Disenchantment
The rationalisation of the world
The elements of rationalisation
The nation-state, legality and the rise of capitalism
Forms of legitimate domination
The problem of legitimacy in modernity — the reason for jurisprudence?
The methodology of sociological understanding
Disenchantment is the fate of a modernity committed to freedom guided through knowledge
Weber on the fate of natural law ideology
Modern discipline and the routines of everyday life
Modernity involves a commitment to rational knowledge but we can have no knowledge of the deepest foundations or of values; hence the paradox of modernity is that it is commitment to knowledge, but knowledge cannot tell us the meaning of life, nor, ultimately, what it is meaningful to do
The paradox of rationalism
Founding a science of law
The openness of law’s truth and law’s creativity
Part Two – Friedrich Nietzsche (1844-1900): Radical Modern or The Prophet of the Post-Modern?
Introduction to Friedrich Nietzsche: philosopher of the post-modern condition
Problematising truth
On perspectivism
Combining ontological flux with perspectivism enables us to see that knowledge works as a tool of power
On the unconscious, and the need to conduct a genealogy of morality
On the difficulty of giving a simple definition or explanation of social institutions
On the need to change the destiny and the type of human
On the homelessness of modern man
Part Three – The Holocaust: An Example of Modernity Taken to the Extreme, and of the Extreme Disenchantment with Modernity
Introduction
An outline of the main ways of viewing the Holocaust
The use of law to transform the Jews into subhuman material
The role of jurisprudence in creating the institutional imagination of the Nazi era: the example of Carl Schmitt
The Holocaust as a part of the general rationalisation of modernity
The disciplining of camp guards and SS men
Jurisprudence and the response to the Nazi regime and the Holocaust
XII. The Pure Theory of Hans Kelsen
Approaching the Pure Theory
Kelsen’s social and political agenda
Kelsen’s Pure Theory is a formalist answer to the problem of constructing social structure in a pluralist reality
The incomplete rationalisation of legal positivism
The structure of the pure theory
The specific nature of the legal norm
The interpretative faculties of the legal scientist
The material for interpretation is found in the legal system’s notion of legal validity
The Grundnorm or basic norm is a presupposition of thought rather than some empirical event or being
The relationship of validity and efFectivity
The uniqueness of the basic norm
Does the fictional or presupposed nature of the basic norm destroy the purity of Kelsen’s theory?
Additional problems
Having stripped the state of all mystical significance, can Kelsen offer anything to provide social unity? Where are metaphysical guarantees to be located?
In what way does Kelsen’s Pure Theory illuminate the fate of legal positivism?
Conclusion
XIII. The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules
The Concept of Law. the jewel of modern jurisprudence, or a testament to its times?
The structure of The Concept of Law
The criticisms of a model of the imperative theory based on Hart’s reading of John Austin
To what extent does Hart’s essay in descriptive sociology actually offer a narrative of law’s functionality?
Hart’s unsatisfactory resolution of the Wittgenstein legacy
The formal existence of a legal system
The internal aspect of rules and the question of obedience
The structure of Hart’s analytic theory of law
Hart’s minimum content of natural law
Hart’s theory of legal reasoning: a middle way between formalism and rule scepticism?
XIV. Liberalism and the Idea of the Just Society in Late Modernity: a reading of Kelsen, Fuller, Rawls, Nozick and communitarian critics
Part One – Kelsen and the Tension between Dynamic and Static Theories of Justice
The interaction of justice, happiness, and authenticity
Kelsen’s espousal of dynamic justice over the traditions of static justice
Part Two – Lon Fuller (1902-1978) and the Idea of a Just Methodology of Legalism
Fuller’s attempt to create a purposive account of legality
The specific internal morality of law
Communication as the key principle to be safeguarded by liberal legality
Part Three – John Rawls and a Theory of Justice
Rawls places the question of legitimacy at the forefront of modern social life
As a foundation for agreeing on the principles of justice Rawls replaces the utilitarian model of the ideal spectator with the idea of agreeing to abide by decisions made behind a veil of ignorance
The principles of justice
Rawls’s idea of reasonable growth: balancing development and moral respect
Part Four – The Radical Free-Market Philosophy of Robert Nozick
Nozick as an example of philosophical libertarianism
What is Nozick’s idea of the minimal state, and why does he claim this is the only state that can be justified?
Arguments based on fair acquisition
Contradictory problems with the principle of rectification
The weakness of the libertarian position
Part Five – Example of Communitarian Critique of Liberal Theories of Justice
The critical analysis of Michael Sandel
Charles Taylor and the charge of atomism
Alasdair MacIntyre and the attempt to rediscover virtue
The communitarian displacement of the debate over the respective priority of the right and the good
Can Rawls respond to the communitarian critique?
XV. Ronald Dworkin and the Struggle Against Disenchantment: or law within the interpretative ethics of liberal jurisprudence
Introduction
Excursus: the fate of the transparent society?
What is the aim of Dworkin’s methodology of interpretative jurisprudence — is it to bring coherence to a set of intentional practices, or to create a new meta-narrative for post-modern times?
The critique of legal positivism and Hart’s theory of legal reasoning
Is there a right answer inherent in the grammar of legal argumentation?
Dworkin’s early theory of judicial practice as aiming for principled consistency
Dworkin’s development of the idea of rights
Law as the open-ended practice of integrity: the dreams of Law’s Empire
Jurisprudence and the judicial attitude
Law as an unfinished enterprise: the judicial role and the writing of a chain novel
Objections and criticisms of Dworkin
Interpretation revisited: or is Dworkin an interpretative imperialist?
Dworkin’s inspirational metaphysics: the politics of principled communitarianism
XVI. Scepticism, Suspicion and the Critical Legal Studies Movement
Prologue: a meditation upon innocence and scholastic knowledge
Destroying innocence: the turn to other knowledges
Origins of the CLS movement
The importance of a mood of scepticism and frustration with mainstream legal education
The problematising of social progress and the humanising of jurisprudence
Valid tactics for CLS include the personification of the reason (or rationality) of the text, and the creation of instability and ambiguity in the text
Essential targets for CLS
Legal liberalism is seen as representing a specific form of politics
Duncan Kennedy and the idea of the fundamental contradiction
Contrast Patricia Williams on rights talk
Revising the fundamental contradiction: or can CLS escape the need to be rational?
Keeping faith with the meta-narratives, or what does the politics of transformation mean in the work of Roberto Unger?
What can be put in place of these rejected ideas?
Conclusion
XVII. Understanding Feminist Jurisprudence
Introduction
Basic issues include those of domination, patriarchy and women’s sense of justice
How does feminist jurisprudence seek to address these issues?
Feminist methodology
Schools and periods of feminist ‘jurisprudential’ writings
Feminist fears and Utopia
Into multiple subjectivities: the impact of black, or critical race, feminism
Post-modern feminism
XVIII. Concluding Remarks: or reflections on the temptations for jurisprudence in post-modernity
Endgame: the ambiguity of the post-modern?
Bibliography
Index