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38613 results in Cambridge Textbooks

Page 1290 of 1931

  • Preface to the fourth edition

  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp vii-viii

  • Summary

    My preface to the third edition was written at the time of the Arab Spring, with its popular demand for more democracy and human rights, but before its widespread failure. One can note the reinstitution of military rule in Egypt, humanitarian disaster in Syria, and chaos in Libya. Five years after 2011, there are ample reasons to be cautious if not pessimistic about the future of human rights. This is not only because of developments in the Arab-Islamic world, but also because of clear repressive trends in important states like China and Russia. Even in the West, almost every democratic government was under pressure from nativist and xenophobic forces hostile to – or at the least indifferent to – the notion of universal human rights. Many persons felt threatened by international forces, often described as socio-economic globalization. In addition, the prevalence of terrorism in much of Asia, Africa, and the Middle East, and its occasional occurrence in the West, created a political climate conducive to violation of many human rights in the name of national security. Counter-terrorism policies led at times to enforced disappearances, torture, administrative detention, and trial in military commissions offering “rough justice.”

    Broad feelings of alienation and insecurity are not conducive to protection of human rights. Yet defense of the individual, his integrity and her dignity, is most needed precisely in those times of stress. It is easy to be in favor of human rights in times of peace and prosperity. The challenge is to respect the fundamental dignity and autonomy of persons in times of violence and economic distress. This means finding some workable and relatively humane blend of national security, economic prosperity, sustainable development, and human rights. This is what international law requires and this is what many governments profess to endorse. But making the law on the books into the law in reality is no easy path – especially given the insecurities and competitions inherent in the nation-state system of world affairs.

    The objective of the fourth edition is finding the right synthesis between positive and negative developments in the quest for a more rights-protective world. All governments go through the motions of paying lip service to this goal. All states have accepted the 1949 Geneva Conventions designed mainly to protect human dignity in war. At the United Nations, the acceptance rate of most human rights treaties is about 70 percent.

  • 8 - Transnational corporations and human rights

  • from Part II - Implementing human rights standards
  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp 295-335

  • Summary

    We saw in Chapter 7 that the international law of human rights was directed mainly to public authorities like states and their governments, but that private non-profit actors like human rights advocacy groups helped shape the rights discourse and action. In this chapter I will show that for-profit private actors like transnational corporations have a tremendous effect on persons in the modern world, for good or ill. For the first fifty years after the adoption of the United Nations Charter and Universal Declaration of Human Rights, these business enterprises mostly fell outside the mainstream debate about the promotion and protection of internationally recognized human rights. This was so despite the fact that the leaders of the German firm I. G. Farben and other business leaders had faced legal justice at the Nuremberg Trials (second round, US jurisdiction) for their role in criminal behavior.

    This general situation was changing in the early twenty-first century. Attention to transnational corporations and human rights constitutes an important dimension in the international discourse on human rights. Non-profit human rights groups, along with the media and particularly consumer organizations and movements, are targeting the corporations. The result is renewed pressure on public authorities, especially states, to adopt norms and policies ensuring that business practices contribute to, rather than contradict, internationally recognized human rights. The corporations themselves are under considerable pressure to pay attention to human rights, although there remain formidable obstacles to a broad corporate social responsibility that includes human rights.

    Enormous impact

    It has been long recognized that business enterprises that operate across national boundaries have an enormous impact on the modern world. If we compare the revenues of the twenty-five largest transnational corporations (TNCs) with revenues of states, as in Table 8.1, we see that economic significance.

    The world's 200 largest TNCs are incorporated in just ten states, as shown in Table 8.2, above all in the United States and Japan. This means, of course, that if one could affect the national policies of these TNCs in this small number of states, one could greatly affect TNCs’ global impact.

    Beyond macro-statistics, it is clear that with regard to the internationally recognized right to health, and if we take the case of the HIV/AIDS pandemic in Africa and other places, the role of drug companies (often claiming intellectual property rights) is central.

  • 4 - Transitional justice: criminal courts and alternatives

  • from Part II - Implementing human rights standards
  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp 127-168

  • Summary

    After gross violations of human rights, what is one to do? This is the subject of transitional justice, a growth industry for intellectuals and policy makers after the Cold War. Should one prosecute individuals in international courts, or in hybrid or special courts, or in national courts? Should one avoid courts and rely on truth commissions, or bar violators from public office, or just move on to concentrate on building a rightsprotective state in the future rather than looking back via criminal prosecution? There are many complexities facing those interested in international criminal justice – meaning those interested in whether to prosecute individuals against the background of international human rights and humanitarian norms. Beyond punishment of evildoers, one needs to keep in mind other possible goals of transitional justice: deterring future atrocities, bringing psychological closure to victims and/or relatives, producing reconciliation among divided communities, building a rights-protective polity in the future, adjusting to the lingering power of elements of the old regime.

    In the last decade of the twentieth century the United Nations created two international criminal courts, the first in almost fifty years. Moreover a new International Criminal Court (ICC) came into legal existence in July 2002. Furthermore, special courts were created in the aftermath of atrocities in Sierra Leone, East Timor, Kosovo, and Cambodia, while a new court was created by the interim government of Iraq after the US invasion and occupation of 2003 to try Saddam Hussein and his lieutenants. The United Kingdom agreed that the former dictator of Chile, Augusto Pinochet, could be extradited to Spain to stand trial there for torture. The Security Council authorized a special court in response to a political assassination in Lebanon, although that was more political theatre than expectation of effective criminal justice.

    In the abstract it is hard to disagree with the proposition that those who commit gross violations of internationally recognized standards pertaining to genocide, war crimes, and crimes against humanity should face criminal justice. The principle of R2P, already noted as adopted by the UN in 2005, adds ethnic cleansing to this list of major violations (but without changing the subject matter jurisdiction of existing courts).

  • Preface to the third edition

  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp ix-x

  • Summary

    My preface to the first edition explains the objectives of this book, and they have not changed. My preface to the second edition explains the considerations that guide revisions, and they have not changed either. As before, revisions seek both to clarify the presentation and to incorporate recent developments. In particular I have now added some brief case studies to provide more specificity to certain rights in political context. My overall approach, hence the structure of the book, remains unchanged.

    From the origins of this work as a gleam in the author's eye, the tension between personal rights and the workings of the state system of world affairs has been highlighted. If anything, the new edition emphasizes this tension even more. It is now even clearer that when states perceive a serious threat to their interests, above all their physical security, it becomes more difficult to get serious attention to human rights, especially the rights of those perceived as enemies. Moreover, when ruling elites elevate perceived challenges to the level of existential threats, sometimes to the nation but often just to the nature of their rule, serious attention to human rights suffers. Complicating analysis is the fact that some non-state actors see the existing situation as so objectionable that unrestricted violence is justified. This then feeds into a downward spiral of animosity and violence that tends to push human rights to the margins of public policy. Pursuit of victory in total war is not a mindset conducive to human rights.

    Still, such is the power of the idea of human rights, defined to include humanitarian law, that states continue to profess their commitment to at least some of those standards, even as their record of compliance is often far short of what it should be. And armed non-state actors who attack civilians and kill prisoners face an uphill journey as they try to explain why they should be considered the new legitimate elite with the right to rule. The Arab Spring of 2011, with its demand for more democracy and other human rights, was a rejection of the militancy of Al Qaeda and other Islamist violent actors.

  • 7 - Non-governmental organizations and human rights

  • from Part II - Implementing human rights standards
  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp 256-294

  • Summary

    By now it should be clear that states, acting frequently through international organizations and/or diplomatic conferences, produce the international law of human rights by concluding treaties and developing customary law. The resulting law obligates states, primarily. In Chapter 6 we examined state foreign policy against the background of the international law of human rights. But private actors can be important at both ends of this process, affecting legislation and implementation.

    This chapter starts with an analysis of non-governmental organizations and their advocacy of human rights ideas, which is directed both to the creation and application of human rights norms. Probably the best known of these groups is Amnesty International, but which over time may have lost some of its former status. This analysis is eventually set within the confines of social movements. Such actors push for more liberalism in the form of human rights protection in international relations. The chapter then turns to those private groups that are mostly called relief or development agencies, or sometimes PVOs (private voluntary agencies) or VOLAGs (voluntary agencies). A classic example is Oxfam. These private actors are crucial especially for grassroots action that directly or indirectly attends to social and economic rights. Most can be said to be liberal or pragmatic liberal actors, in that they emphasize policies for the betterment of individuals under legal norms, rather than emphasizing the collective national interests of states as pursued through the application of power. Chapter 8 addresses private for-profit actors, commonly called multinational or transnational corporations when they act across national borders.

    Private advocacy for human rights

    There are perhaps 250 private organizations consistently active across borders that take as their reason for being (raison d’être) the advocacy of some part of the international law of human rights and/or humanitarian affairs on a global basis.2 From this group a handful have the requisite budget, contacts, expertise, and reputation to get the global traditional media and major governments to pay them at least periodic attention across a range of issues and situations: Amnesty International (AI), Human Rights Watch (HRW), the International Commission of Jurists, the International Federation for Human Rights, the International Committee of the Red Cross, Human Rights First, Lawyers Without Borders, Doctors Without Borders, Physicians for Human Rights, Anti-Slavery International, PEN (Poets, Essayists, Novelists), Article 19 (devoted to freedom of expression), etc.

  • 6 - Human rights and foreign policy in comparative perspective

  • from Part II - Implementing human rights standards
  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp 214-255

  • Summary

    While intergovernmental agencies and private transnational groups dealing with human rights proliferate, one central key to progressive developments remains states and their foreign policies. As we have already seen, IGOs, from the UN through the OAS to the Organization for Security and Cooperation in Europe, have extensive human rights programs. Independent international officials for these organizations generate some influence. But it is usually state members of these IGOs that take the most important decisions, and it is primarily states that are the targets of reform efforts. Likewise, as we will see in Chapter 7, NGOs such as Amnesty International, Human Rights Watch, and Physicians for Human Rights, among others, are highly active in human rights matters and generate some influence. But, still, it is states that approve treaties and their monitoring mechanisms, states that sometimes manipulate foreign assistance in relation to rights, states that (may or may not) arrest war criminals – either singly or via international organizations such as NATO. NGOs mainly pressure states to do the right thing.

    This chapter looks at human rights and state foreign policy in comparative perspective. It begins with a short discussion of three prominent mechanisms states can and do – at least sometimes – employ to influence another government's human rights policies: diplomatic, economic, and military means. Different approaches may be taken in different situations, as states usually calculate the instruments available, the expected effect of the action taken, anticipated reactions – and above all the costs to themselves of trying to advance human rights abroad. This is followed by a focus on the United States, the most important actor in international relations early in the twenty-first century. I show that the USA has a particular slant to its foreign policy on rights, and that Washington is often more prone to preach to others than to take international rights standards very seriously in its own policies. Clearly, the USA is highly selective when and how it pushes for rights abroad. The chapter then provides a comparative analysis of human rights in the foreign policies of some other states that either are liberal democracies or aspire to be so. I show that most differ from the US approach in one way or another, due to a varying combination of history and political culture, geo-political position, and perceived national interests.

  • 5 - Regional application of human rights norms

  • from Part II - Implementing human rights standards
  • David P. Forsythe, University of Nebraska, Lincoln
  • Book:
    Human Rights in International Relations
    Published online:
    06 August 2018
    Print publication:
    18 August 2017, pp 169-213

  • Summary

    The world may be a smaller place in the light of communication and travel technology, but it is still a large planet when it comes to effective international governance. Given the approximately 6 billion persons and the more than 190 states that existed at the turn of the twenty-first century, and given the weakness of global organizations like the United Nations, it was both logical and sometimes politically feasible to look to regional organizations for the advancement of human rights. This chapter will show that regional developments for human rights were truly remarkable for a time in Europe, delicately progressive in the Western Hemisphere, embryonic in Africa, and otherwise weak. The key to the effective regional protection of human rights is not legal drafting, but underlying political culture, political will, and political acumen. One sees this clearly in the light of Brexit, the 2016 British decision to leave the European Union, in large part because of resentment about the deep intrusion of regional authority into traditional national affairs. In Europe where there are considerable cases and other regional human rights decisions to analyze, I provide a summary analysis. In the Western Hemisphere with substantial case law and other important regional decisions only recently, I provide mostly political analysis of underlying conditions but some attention to legal factors. I treat Africa briefly because of lack of major impact through regional arrangements.

    Europe

    After World War II, significant US foreign aid to Europe in the form of the Marshall Plan encouraged regional cooperation, especially of an economic nature. Most West European elites endorsed this approach at least to some degree, both in pursuit of economic recovery and to defend traditional western values in the face of Soviet-led communism. One result was the creation of the Council of Europe (CE) with its strong focus on human rights. Separately, owing to reluctance of the UK to integrate fully with the rest of Western Europe, one had the development of the European Communities, which more or less evolved into the European Union (EU). By the start of the twenty-first century it was evident that this bifurcation, while it had “worked” to a considerable degree, was not a completely happy situation. As European international integration proceeded, the contradictions of bifurcation were salient as never before.

  • 14 - Justice

  • from PART 4 - RIGHTS AND JUSTICE
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 389-434

  • Summary

    Justice is a universal aspiration, and the sense of injustice is a powerful human emotion. It is strongest when a person's own interests are harmed, but is also aroused in civilised people when they witness wrongs done to others. Widespread and unrequited injustice inevitably leads to conflict. A society that does not have justice as a governing principle is an unstable society thatwill be held together, if at all, by force. Justice is also a perennially controversial idea in human affairs. People are united in their belief in justice as an ideal, but are divided onwhat justicemeans or requires. Many conflicting claims for material goods are made in the name of justice because of its emotive power. Justice has no universally valid definition. It means different things to different people and its requirements may change over time. Different kinds of justice are not always in harmony. One person's claim for legal justicemay conflictwith another person's demand for distributive justice. The legal requirements of procedural justice may constrain the pursuit of substantive justice, as explained further below.

    Justice is not exclusively a jurist's concern. It is at the centre of moral and social philosophy. I will not attempt the futile task of surveying, within a book chapter, the vast body of legal and philosophical literature on justice from the time of Plato to the present day. My aim is to explore the main connections between law and justice. Some of these connections were examined in chapters 6, 7 and 8, in relation to natural law theory and the question of separating law and morality. In chapters 6 and 7, I discussed the jurisprudential tradition that proposes that law must meet certain moral criteria to warrant the obedience of citizens. In Chapter 8, I addressed the idea that the law by its nature is a moral institution – that it has what Fuller called an inner morality and what Dworkin termed law's integrity. This chapter will consider a broader range of relations between law and justice.

  • 8 - Separation of law and morality

  • from PART 2 - LAW AND MORALITY
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 204-228

  • Summary

    Jurisprudence was enlivened in the second half of the 20th century by new debates about law and morality. Two of these involved Herbert Hart, the major figure in British legal positivism. Hart argued that the connection between law and morality was not necessary but contingent. He acknowledged that law often gives effect to morality, as when it prohibits crimes and torts and demands the performance of contracts. However, he maintained that a law, however immoral, will be law if it is recognised as law according to the established criteria of valid law. The sensible response to such enactments, Hart argued, is not to deny that they are law but to correct their effects by other laws passed where necessary with retrospective effect. (See the discussion of Hart's views in Chapter 3.)

    Two American professors of law questioned this general theory, and argued that law cannot be separated from morality in the sense proposed by Hart and his positivist predecessors. The first was Lon Fuller, whose theory was inspired by the German legal philosopher Gustav Radbruch. The second was Ronald Dworkin, who was a student of Fuller at the Harvard Law School. Their arguments are related in some ways to the classical ideas of natural law discussed in the previous chapter, but they also introduced new dimensions to the debate about the relation of law and morality. Fuller and Dworkin approached the question from different directions, but I conclude that their theories are fundamentally similar. We cannot leave the subject of law and morality without discussing their philosophies.

    Lon Fuller on the morality of law

    Lon Louvois Fuller (1902–78) was Carter Professor of General Jurisprudence at the Harvard Law School. The significance of his work in legal philosophy is insufficiently recognised outside the United States. He is best known for the debate with Hart on the connection between law and morality. Fuller was not a natural law theorist in the traditional sense, but in some respects his theory is more far reaching. Fuller's theory of the morality of law is best understood against the background of the postwar debate about the legality of crimes against humanity committed under the claimed authority of positive law.

  • 13 - Fundamental legal conceptions: The building blocks of legal norms

  • from PART 4 - RIGHTS AND JUSTICE
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 365-388

  • Summary

    Previous chapters have focused on theories about definitions and descriptions of the law as it is or as it ought to be, and of how law is made or emerges in society. This chapter examines another vital aspect of law: namely, the internal structure of legal norms and the basic conceptions that are used in legal statements. In other words, we look for the building blocks of legal statements, the conceptions without which a lawmaker cannot make a law. This discussion is centred on the remarkable contribution on this subject made by Wesley Newcomb Hohfeld (1879–1918).

    Not every kind of statement makes law. Assume that King Rex is the absolute ruler of a country. The rule of recognition accepted by the country's officials and citizens grants Rex the power to make law according to his will. He simply has to express it and his will becomes law. One morning on awaking, Rex says to no one in particular, ‘I hope the weather will be nice this morning so I can ride my horse’. This is obviously not a law but a hope. At breakfast he tells his Queen, ‘I wish my subjects will be well behaved and law abiding today’. This is also not a law but simply a wish. That afternoon he proclaims at the Royal Council: ‘It is henceforth the law that no trader shall sell a standard loaf of bread for more than one dollar’. This is a law because it creates a legal duty and a legal right. The trader has a duty not to sell a loaf for more than one dollar and the customers have the right to receive a loaf by paying one dollar or less.

    Law informs people of what they may do, what they must do and, most importantly, what they must not do. A person may make a will to bequeath an estate. The master of a ship must go to the aid of a vessel in distress. A motorist must not drive over the speed limit. It is generally thought that legal norms work by creating rights and imposing duties. Person A has a duty not to steal other persons’ property. Property owners have a right not to have their property stolen.

  • 11 - Economic analysis of law

  • from PART 3 - SOCIAL DIMENSIONS OF LAW
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 301-332

  • Summary

    What has law got to do with economics? Most lawyers will probably say ‘nothing’ or ‘not much’. However, if the question posed is ‘What has law got to do with the economy?’, most lawyers are bound to answer, ‘quite a lot’. The laws of property and contract allow people to trade in goods and services. Consumer protection laws place restrictions on how traders may conduct trade. Labour laws regulate the labour market. Competition law aims to increase competition and prevent monopolies. Tort law gives protection to person and property from wilful or negligent harm, without which trade and commerce would be seriously restricted. How can farmers grow wheat and sell their crops if their land is not secure from trespass and their crops are not protected from theft? How can General Motors or Ford make and sell cars if they have no ownership of the cars that they produce? International trade and investment law promotes trade and investment among nations. There will be little foreign trade or investment if states do not recognise the rights of citizens of other states. Even laws concerned with private morality have economic effects. Prohibition of trade in alcoholic beverages in the United States gave rise to a new industry known as bootlegging dominated by criminal gangs. Price controls are notorious for promoting black markets. Most lawyers accept that laws affect the economy, directly or indirectly.

    Lawyers also have no difficulty in recognising that economic factors have quite a lot to do with legislation passed by parliaments. Governments, depending on their philosophies, react to economic forces in different ways. They may promote or suppress competition. They may enact laws to counter what they think is inequitable wealth distribution caused by markets. They may seek to limit rising costs of products through price controls, or try to support producers through subsidies. They fight inflation and deflation using whatever legislative or administrative devices they can find. So, what can economic science teach lawyers about law that lawyers do not already know? It turns out to be quite a lot. This chapter examines the contributions that economic science has made to the understanding of law.

  • 7 - John Finnis' restatement of classical natural law

  • from PART 2 - LAW AND MORALITY
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 187-203

  • Summary

    John Finnis, an Australian lawyer and philosopher, is Professor of Law and Legal Philosophy at the University College, Oxford and adjunct Professor at the University of Notre Dame. In his book Natural Law and Natural Rights, Finnis undertook a major restatement of the classical natural law theory, with the intention of clarifying its central ideas and defending the tradition against its critics. His restatement represents further development of the thought of Aristotle and Aquinas. Finnis is a Catholic philosopher whose conservative positions on issues such as euthanasia, homosexuality and same-sex marriage have many critics. However, in Natural Law and Natural Rights Finnis sought to make a statement of natural law theory that harks back to its pre-Enlightenment theme without explicitly relying on supernatural factors. He hoped that such a statement would appeal to both theistic and non-theistic thinkers as a matter of practical reason. He claimed that his book ‘offers a rather elaborate sketch of a theory of natural law without needing to advert to the question of God's existence or nature or will’, although it does not mean that a further explanation of the theory is not required, or that ‘the existence and nature of God is not that explanation’ (2011, 49). Thus, while a non-theist can embrace his theory for its practicality, its fullest understanding requires the consideration of the role of God. I will assess this claim later in this chapter.

    The central task that Finnis set himself was to persuade readers that there are universal basic values or goods that may be discerned through practical reason, and from which we may derive our moral rules. Finnis agreed with Hume that it is not possible logically to infer the ‘ought’ from the ‘is’, meaning that we cannot derive a principle of how we ought to behave from observed facts of how things are. Finnis argued, however, that not every natural law theorist – and certainly not Aquinas – is guilty of that error (2011, 33). He pointed out that according to Aquinas the first principles of natural law that specify basic forms of good and evil are self-evident and indemonstrable. Finnis asserted, following Aquinas, that the basic goods may be non-inferentially grasped by persons who are old enough to reason.

  • 2 - British legal positivism: Philosophical roots and command theories

  • from PART 1 - LAW AS IT IS
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 23-52

  • Summary

    Legal positivism is the most influential school of thought in jurisprudence. This is hardly surprising, as the idea of law as the creation of a human lawgiver that lies at its heart is a common intuition. Ask the person on the street whence comes the law and expect to hear that law is the work of parliaments, monarchs or other rulers. Ask a lawyer what the law is, and anticipate an answer drawn from legislation and judicial precedents. The ancients may have regarded the law as received from divine sources but in the modern world, where most laws have a known human author, people think of law as the product of designing human minds.

    British legal positivists regard the law as ‘social fact’, by which they mean that law is found in the actual practices or the institutions of society. Legal positivists have their significant disagreements but they share the common aim of helping people understand the law as it actually is. A survey of positivist writings on the nature of law reveals the following main themes:

  • 1. Law is the creation of human agents. Even custom is not law unless it is recognised and enforced by a competent human authority.

  • 2. The law as it is can be distinguished from notions of what the law ought to be. Law is social fact. It is found as rules declared by authorities such as legislatures and courts, or in the actual practices of those who enforce the law.

  • 3. There are good practical reasons for distinguishing the law as it is from what the law ought to be. It makes the law more clear and certain, so that people have a better idea of their rights and duties and the community is better able to assess the worth of laws.

  • 4. It is possible to identify a set of formal criteria by which we may determine whether or not a rule or command is a law.

  • 9 - Sociological jurisprudence and sociology of law

  • from PART 3 - SOCIAL DIMENSIONS OF LAW
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 231-262

  • Summary

    Sociological jurisprudence and its related field sociology of law together constitute an immense field of study, embracing all aspects of the relations and interactions between law and society. Legal positivism and natural law theory are focused on a central question in legal theory. In the case of legal positivism it concerns the formal tests for identifying a law. Natural law theory is mainly about the relation between law and morality. The methodology of legal positivism is empiricism and logical reasoning and, in the case of Kelsen, transcendental idealism and logical reasoning. The methodology of natural law is mainly practical reason. Thus, legal positivism and natural law theory are limited by both their aims and their methodology.

    American legal realism threw open the door of jurisprudence to admit facts about the way the legal system actually operates in society. The rule sceptics focused on the differences between the law as written down and the law as applied in particular cases by the appellate courts. The fact sceptics studied the uncertainties that attend the trial process. The rule sceptics argued that if judges are the real lawmakers, they might as well take that role seriously and do it more openly and competently by taking explicit account of the social consequences of their decisions. Legal realism of the American kind broadened the scope of jurisprudence by connecting what lawyers and judges actually do with the society that they are asked to serve through the processes of the law. Even so, the American realists were preoccupied with official law – the law of the courts and of the legislatures as interpreted by the courts.

    Sociological jurisprudence, with the help of sociology of law, expanded the boundaries of jurisprudence much further – so much so that the field is difficult to demarcate. There are innumerable connections between law and society: every branch of human learning, from physics, chemistry and medicine to philosophy, religion and psychology, produces knowledge about law and society. Sociology borrows from all these fields, and sociological jurisprudence borrows from sociology. It would take a sizeable volume to give even a reasonable account of this field. This chapter offers an explanation of the tradition of sociology of law and sociological jurisprudence through the work of its founders.

  • 4 - Germanic legal positivism: Hans Kelsen's quest for the pure theory of law

  • from PART 1 - LAW AS IT IS
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 69-108

  • Summary

    British legal positivism was founded on empiricism. Empiricist legal theorists reject metaphysical or mystical explanations of law and assert that law exists as social fact and nothing more. The main inspiration for Germanic legal positivism is not empiricism but the transcendental idealism of the German philosopher Immanuel Kant (1724–1804). Whereas British legal positivists regard law as fact distinct from morals, their Germanic counterparts seek to separate law from both fact and morals. This chapter discusses Germanic legal positivism principally through the work of its most famous proponent, Austrian legal philosopher Hans Kelsen.

    Kelsen (1881–1973) was born in Prague but moved with his family to Vienna at the age of two. He taught at the universities in Vienna and Cologne and at the University of California at Berkeley. Kelsen was the author of the Austrian Constitution and the designer of the Austrian model of judicial review adopted by many countries.

    The key elements of Kelsen's theory are these. Facts consist of things and events in the physical world. Facts are about what there is. When we wish to know what caused a fact we look for another fact. A stone thrown in the air comes down because of the force of the Earth's gravity. There are seasons because the Earth's axis is tilted at 23.5 degrees. A norm, unlike a fact, is not about what there is but is about what ought to be done or not done. Whereas facts exist in the physical world, norms exist in the world of ideas. Facts are caused by other facts. Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished. (He may not get caught.) The norm that the thief ought to be punished exists because another norm says so. Not all norms are laws. There are also moral norms. Legal norms are coercive; moral norms are not. Moreover, a legal norm has the quality of ‘validity’. A legal norm is valid if it is endowed with validity by another norm. Whereas physical things arise from causation, legal norms arise from validation by another valid norm. A norm that confers validity upon another norm owes its own validity to another norm, and so on. This regression cannot go on infinitely.

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