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38613 results in Cambridge Textbooks

Page 1291 of 1931

  • 10 - Radical jurisprudence: Challenges to liberal legal theory

  • 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 263-300

  • Summary

    The jurisprudential theories discussed in previous chapters, with the notable exception of the theory of Karl Marx, are cast within the intellectual tradition of political liberalism. There are significant differences among these theories, but they are ultimately grounded in liberal views of law and society. This chapter discusses the challenges to the fundamental assumptions of liberal legal theory that came to prominence during the later decades of the 20th century. It will focus in particular on the ideas of the critical legal studies (CLS) movement, postmodernist legal theory and feminist theory. It is not possible to understand criticism without knowing what is being criticised. Hence, I start with a brief discussion of liberalism and liberal legal theory.

    Liberalism and liberal legal theory

    Liberalism is a tradition in political and legal theory that gives primacy to individual liberty in the political and legal arrangements of a society. ‘Liberalism’ is a term of recent origin. Originators of the liberal philosophy such as Hobbes, Locke, Hume, Smith and Montesquieu did not use the word. In fact, ‘liberal’ in early English usage was a term of ridicule meaning a libertine. The term gained respect and influence during the 19th and 20th centuries and (in its various forms) has become the dominant political ideology of the Western world. There are many kinds of liberal theory, and important differences among them. The following questions draw different responses from liberal thinkers:

  • 1. Why is individual liberty the pre-eminent political value?

  • 2. What does individual libertymean and what are its bounds and requirements?

  • 3. How can individual liberty be achieved and protected; what kinds of institutional arrangements serve individual liberty?

    • Kinds of liberalism

    There are two main liberal schools of thought about the pre-eminence of individual freedom. The natural rights theorists such as Hobbes, Locke, Grotius and Rousseau argued that liberty was inherent in personhood. Self-ownership, property acquired by one's labour and capacity to pursue one's chosen life ends were considered essential to existence as a person, as opposed to being another's property. Utilitarian thinkers such as Bentham and Mill, and evolutionary theorists such as Hume and Smith, believed in the intrinsic worth of individual liberty but made further arguments on grounds of efficiency. Societies that allow greater freedom for individuals have achieved greater prosperity than those that suppress liberty. This is also the message of modern economics based on methodological individualism.

  • 5 - Realism in legal theory

  • 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 109-138

  • Summary

    In the previous two chapters I discussed the two most influential versions of legal positivism. In this chapter I explain and consider the theories of the jurisprudential school known as the legal realists, who challenge both legal positivism and natural law theory in important ways. Realists are also positivists in the sense that they seek to explain the law as it is as opposed to what the law ought to be. Realists agree with the positivists that law's connections with morality are only contingent or coincidental. An immoral rule may still be law. Theirs is a very different complaint: namely, that legal positivists misrepresent the nature of law by their undue focus on its formal features.

    Legal realism refers mainly to two schools of thought. One is known as American realism and the other as Scandinavian realism. Scholars of both traditions reject the more formal descriptions of the law given by legal positivists, but differ in what they see as the chief defects of positivist theory. The American realists claim that the law in real life is very different from the law stated in the law books. The real law, they say, depends on how appellate courts interpret written words and how trial courts determine the facts in particular cases. There is uncertainty at both ends.

    Scandinavian realism is a movement that started with the philosopher Axel Hägerström's attempt to find a scientific theory of law that did not involve metaphysical explanations. Hägerström and those who followed him down this path found that the force of law could not be explained by physical facts alone. They claim that, however hard you try, it is not possible to find a corporeal thing that corresponds to concepts such as property, right or duty. Law, they say, exists by the psychological effects caused by certain facts. Whereas American realism is focused on getting the facts right about lawmaking, Scandinavian realism concentrates on the psychological pressures that make people observe the law. This is illustrated in

    The theorists even within each school do not speak with one voice, and the differences among them need to be examined.

  • 6 - Natural law tradition from antiquity to the Enlightenment

  • from PART 2 - LAW AND MORALITY
  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 141-186

  • Summary

    From a purely factual standpoint the history of the natural law idea teaches one thing with the utmost clearness: the natural law is an imperishable possession of the human mind. In no period has it wholly died out.

    Heinrich A Rommen (1955, 215)

    The idea of a higher moral law that positive human law must not violate has a long and continuous history in both Western and Eastern thinking. It is found in Greek philosophy at least from the time of Heraclitus of Ephesus (c. 535–475 BC). It has a central place in Judeo-Christian doctrine as set out in the writings of Augustine, Thomas Aquinas and the Scholastics. It lived in the natural rights discourses of Grotius, Hobbes, Locke, Pufendorf and others. In Vedic (Hindu) philosophy the moral law of governance is revealed in the Dharmasastra. In traditional Sinic culture, Confucian philosophy subordinated law to ethics. The religious Sharia is a powerful influence on the law of Islamic nations. In our age, basic human rights are posited as universal higher norms binding on nationstates. In Western philosophy such higher moral law is commonly known as natural law.

    Natural law is so called because it is believed to exist independently of human will. It is ‘natural’ in the sense that it is not humanly created. Natural law theories are theories about the relation between the moral natural law and positive human law. Natural law theories vary in aims and content but they share one central idea: that there is a kind of higher (non-human) ‘law’, based on morality, against which the moral or legal force of human law can be measured. Natural law theory in its most uncompromising form proclaims Saint Augustine's doctrine that unjust law is not law – lex injusta non est lex. We discover, though, that this is not a central tenet of some other natural law theories. Most natural law theorists maintain that the duty to obey the law is ultimately a moral duty.

    One of the difficulties about understanding the natural law tradition has much to do with the modern legal mindset. Lawyers think of the law as rules enforceable in a court of law. Hence, if natural law is to make any sense to the modern legal mind, it must be capable of judicial recognition and enforcement even against positive state law.

  • 3 - Herbert Hart's new beginning and new questions

  • 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 53-68

  • Summary

    Herbert Lionel Adolphus Hart (1907–92) was Professor of Jurisprudence at the University of Oxford from 1952 to 1969. His work, particularly The Concept of Law, dominated British jurisprudence in the final decades of the 20th century. Legal positivism's critics were mostly those outside that tradition, until Hart arrived. Hart sought to rescue legal positivism from the factual and conceptual traps into which Bentham and Austin had led it. Like Bentham and Austin, Hart was a utilitarian in philosophical outlook, and like them he saw public benefit in separating law from rules of other kinds. But unlike Austin and Bentham, he realised that this cannot be done by identifying law exclusively with the commands of a sovereign. To do so is seriously to misunderstand the nature of law and the legal system. The command theory does not account for all the different kinds of rules that we justifiably call law.

    The first part of Hart's book is a sustained criticism of the command theory. His criticisms are not original. Oliver Wendell Holmes in his Harvard lectures made much the same points (Holmes 1871, 723–25). So did Hans Kelsen who, as Lars Vinx points out, anticipated most of Hart's criticisms of Austin (1945, 30–7, 62–4, 71–4, 77–83; Vinx 2011, 473). The command theory is premised on the existence of a sovereign commanderwhose power is unlimited and cannot be legally limited. Hart argued, correctly, that inmany legal systems, including that of Britain, there is no such sovereign. The British sovereign is a creation of law, including the rules of royal succession. It is practically unreasonable to say that these rules are rules of morality but not law. The idea of law as a command that people obey because of the threat of sanctionmisses an important quality of law– the reflective acceptance of the law as binding by the people to whom it is directed. A person may compel another to obey a command by threatening evil, as when a robber demands my wallet while pointing a gun at me.

  • 12 - Evolutionary jurisprudence

  • 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 333-362

  • Summary

    Like the winds, that come we know not whence, and blow withersoever they list, the forms of society are derived from an obscure and distant origin; they arise, long before the date of philosophy, from the instincts, not from the speculations, of men. The croud of mankind, are directed in their establishments and measures, by the circumstances in which they are placed; and seldom are turned from their way, to follow the plan of any single projector.

    Adam Ferguson (1966 (1767), 122)

    Introduction

    The second half of the 20th century witnessed a resurgence of evolutionary theory in both natural sciences and social sciences. The most significant feature of this movement has been the extension of the Darwinian theory of evolution – or, more accurately, the neo-Darwinian synthesis – to human culture in order to explain such phenomena as scientific and technological development, the emergence of formal and informal social institutions, language acquisition, and even mind and consciousness. Evolutionary accounts of legal emergence have figured prominently throughout the 20th century in cultural anthropology and within branches of economics, most notably the Austrian and the institutional economics traditions. Although American jurisprudence was quick to embrace evolution after Darwin, legal scholars in the 20th century have only paid sporadic attention to evolutionary accounts of law (Ruhl 1996a, 1412–13). The situation has changed somewhat with the persistent efforts in law and biology by scholars associated with the Gruter Institute for Law and Behavioral Research (Elliot 1997, 596) and the nascent complexity and law movement (Ruhl 1996a, 1996b). Outstanding work is also flowing from the efforts of Owen Jones and his colleagues at the Society for Evolutionary Analysis in Law (SEAL) based in the Vanderbilt University (Jones 1999; Jones & Goldsmith 2005). However, this body of learning has yet to establish its presence in mainstream law school curricula or research.

    It is not widely appreciated that the recent blossoming of the evolutionary theory of culture has a distinguished pedigree that pre-dated Darwin's breakthrough and, indeed, provided Darwin with the intellectual tools that helped him to uncover the idea of natural selection (Pollock 1890, 41; Hayek 1982, 1, 152–3). The work of these pre-Darwin scholars is particularly significant in legal theory as they drew their greatest inspiration from the shining example of the common law, and proceeded to establish a solid foundation for an evolutionary jurisprudence.

  • 1 - Introduction

  • Suri Ratnapala, University of Queensland
  • Book:
    Jurisprudence
    Published online:
    06 August 2018
    Print publication:
    08 August 2017, pp 1-20

  • Summary

    This book is about the social phenomenon that is known as law, and its relation to justice. This is not a treatise on some branch of law such as contract law, tort law or criminal law. It is about past and present theories concerning the nature of law and justice in general. However, it is not possible to conduct an inquiry of this nature, let alone make sense of the more important questions, without reference to actual legal systems and actual laws. Hence, specific rules of law figure in discussions throughout this book.

    Jurisprudence in the sense used in this book has been around since at least the time of the philosopher Socrates (469–399 BC). Great minds have sought answers to questions about the nature of law, right and justice, but questions persist. This says as much about the complexity of these ideas as it does about the limits of our language and reason. Theories that have proposed answers to questions have themselves become subjects of ongoing debate. This book does not pretend to have the last word on any of these questions, but neither does it avoid controversy. Its primary object, though, is to state in comprehensible terms the major questions in jurisprudence, assess critically the contributions on these questions made by various schools of thought, introduce the reader to some new insights about legal systems and make its own contribution to this conversation about law and justice. It does not matter that there is no consensus about the meaning of concepts such as law and justice. There may never be. We can make up our own minds after getting to know relevant theory, and in so doing learn a great deal about the legal system and the society we find ourselves in. The study of jurisprudence brings immediate rewards to the lawyer. It hardly matters to a physicist or a chemist how anyone defines physics or chemistry. The physicist and the chemist are not constrained in what they do by definitions of their disciplines.

  • Preface

  • John Meier, Lafayette College, Pennsylvania, Derek Smith, Lafayette College, Pennsylvania
  • Book:
    Exploring Mathematics
    Published online:
    06 August 2018
    Print publication:
    07 August 2017, pp xi-xvi

  • Summary

    Mathematics is a fascinating discipline that calls for creativity, imagination, and the mastery of rigorous standards of proof. This book introduces students to these facets of the field in a problem-focused setting. For over a decade, we and many others have used draft chapters of Exploring Mathematics as the primary text for Lafayette's Transition to Theoretical Mathematics course. Our collective experience shows that this approach assists students in their transition from primarily computational classes toward more advanced mathematics, and it encourages them to continue along this path by demonstrating that while mathematics can at times be challenging, it is also very enjoyable.

    Here are some of the key features of Exploring Mathematics.

  • • The sections are short, and core topics are covered in chapters that present important material with minimal pre-requisites. This structure provides flexibility to the instructor in terms of pacing and coverage.

  • • Mathematical maturity requires both a facility with writing proofs and comfort with abstraction and creativity. We help students develop these abilities throughout the book, beginning with the initial chapters.

  • • A student does not learn mathematics by passive reading. It is through the creation of examples, questioning if results can be extended, and other such in-the-margin activities that a student learns the subject. We encourage this behavior by including frequent in-text exercises that serve not only to check understanding, but also to develop material.

  • • We construct many mathematical objects that are elementary in their definition and commonly referenced in upper-level classes. These are woven throughout the text, with related exercises providing numerous opportunities for independent investigations of their important properties.

  • • Each chapter concludes with a robust mixture of exercises ranging from the routine to rather challenging problems, and the book concludes with a collection of projects: guided explorations that students can work on individually or in groups.

    • These and other fundamental aspects of Exploring Mathematics are described in greater detail below, where we also indicate different ways an instructor can map out the material that can be covered in a single term.

    An Active Approach

    Our experience teaching courses that introduce students to mathematical proofs shows that the spirit of mathematics is effectively taught with a focus on problem-solving. It is in doing mathematics – by exploring definitions, forming conjectures, and working on the writing of proofs – that students begin to understand the discipline.

Page 1291 of 1931