Reinach believed that basic legal concepts exist, that their existence is independent of the positive law, and their existence is independent of moral obligation. In this idiosyncratic juxtaposition of positions, Reinach is joined by contemporary theorists drawing on evolutionary psychology and cognitive science in jurisprudence. But Reinach emphatically insisted that his claims were ontological, not psychological. This chapter explains why. For Reinach himself, the ontological status of legal concepts was one front in a broader debate over whether basic mathematical and logical concepts were true a priori or features of human psychology; a demonstrative project in the breadth of the a priori. But it is suggested that today’s theorists need not be as preoccupied with this distinction as Reinach was. Not only is the practical difference between ontological and evolutionary theories not as wide as Reinach seems to have assumed, but arguments for metaphysical reality in other domains are substantially less persuasive as applied to Reinach’s legal concepts.

This Introduction situates Reinach and the Foundations of Private Law, and Adolf Reinach, in contemporary currents in private law theory and philosophy.

This Introduction situates Reinach and the Foundations of Private Law, and Adolf Reinach, in contemporary currents in private law theory and philosophy.

This chapter critically examines the treatment of concepts of legal personality and representation provided by the great (if lamentably now mostly forgotten) German realist phenomenologist Adolf Reinach. In The A Priori Foundations of the Civil Law (1913), Reinach offers what is meant to be a phenomenological elucidation of the a priori nature (essential formal characteristics) of a wide variety of foundational legal concepts, the latter understood as denoting distinctive modalities of speech act. The primary interest of the chapter lies in the analysis that Reinach provides of concepts of personality and representation. However, one cannot understand what is distinctive in – and distinctively compelling or puzzling about – Reinach’s analysis of these concepts without appreciating what is distinctive about his general methodology of conceptual analysis (i.e., his phenomenological, speech act theoretical understanding of social behavior denoted by legal concepts). Thus, in addition to examining Reinach’s views on persons, legal personhood, and legal representation, the chapter provides a critical introduction to Reinachian conceptual analysis and explains its enduring interest for contemporary private law theory.

In this chapter, the focus is on negative states of affairs, on their corresponding judgments, and on the connection of these with Reinach’s jurisprudence – something that has not yet been done in the extant literature on him. The position advanced is that it is because the law frequently turns on what appears to be negative states of affairs; Reinach’s legal training may have contributed to his insistence on their very being and their having the same ontological status as positive states of affairs. Reinach was rather unique in the Munich and Göttingen phenomenological circles because he was a law student in addition to being a student of descriptive psychology and phenomenology; the ways he combined the various teachings from these fields opened up for him distinctive ways of seeing the world – in all its modes of being and not being. Consequences of the position include restoring these entities to their rightful place in his ontology (negative states of affairs have received far too little attention and serious inclusion in his work) and the potential for making Reinach whole again – by bridging his early law education with his phenomenological ontology.

Law-making is not a straightforward process in international law. This chapter focuses on the various law-making processes and structures available for creating international law. It first considers the traditional sources of international law as set out in art 38(1) of the Statute of the International Court of Justice generally and the concept of hierarchy of norms and relative norms before considering each of the art 38(1) sources in turn. The chapter concludes by considering alternative sources of international law not covered by art 38(1): 'soft law' including that created by non-State actors, and the role of the UN in creating international law.

My introduction considers the rhetorical mechanics of Roman legal writing, and isolates three distinct discursive modes in which legal writing represents the world: the normative, the descriptive, and the constructive. I then discuss the ideological valence of law in the Roman imagination, with reference to Cicero’s description of the ideal magistrate as a “talking law.” I finally provide a plan of the work.

I conclude the book by discussing how later historians used Roman law to imagine legal orders that were more appealing than their own conditions. I use two examples: Bracton, whose treatise on English law used Roman concepts to aggrandize jurists like himself within the legal system of the thirteenth century, and Fritz Schulz, a refugee from Nazi Germany whose writings imagined a Roman rule of law as an implicit counterpoint to the totalitarianism he had fled. I finally argue that this rhetorical feature of Roman law is not unique to the Roman context, but instead reflects a broader aspirational tendency in legal writing and historiography.

Psychology and law, by their nature, are deeply entwined. Both are about human behavior – understanding it, modifying it, regulating it. Psychology’s research engagement with legal topics enjoys a long history, but until recently has been largely limited to clinical assessment (e.g., capacity, insanity) and police and trial evidence and procedures (e.g., eyewitnesses, jury instructions). The traditional canon of “Psychology & Law” research gained prominence when DNA evidence revealed that many wrongful convictions involved problems foreseen by psychologists. Also, the emergence of “Behavioral Law & Economics” likely provided more legitimacy to law’s engagement with empirical psychology topics and methods, spurring “Law & Psychology” teaching and research in law schools. The expanded range of research can be found across the US law curriculum as illustrated in four main first-year courses – Criminal Law, Torts, Contracts, and Property – and two commonly taken or required courses – Evidence and Professional Responsibility. The current experimental jurisprudence boom has added to the topics and methods used in this research and amplifies the existing trend in which psychology engages more closely with the content and values of law.

As a branch of analytic philosophy, jurisprudence, understood as legal philosophy, is often thought to be a nonempirical enterprise. It turns out, however, that unresearched, unsupported, and largely impressionistic empirical assertions have long been a part of the analytic jurisprudential enterprise. Recognizing this is the first step towards examining and testing these empirical assertions. Using the proclivity of ordinary people to obey the law (or not) because of the content-independent existence of law as one example of such an assertion, this chapter explores how that assumption might be tested by experimental and other means, as a prolegomenon to testing the empirical claims and assumptions that have long pervaded even the most traditional jurisprudence.

A writer, a theorist, and an empiricist walk into a book. They muse about how the law might influence people’s moral intuitions. Their dialogue touches on recent studies exploring such an effect in moral dilemmas. As they ponder the possible feedback loop between law and morality, they also wonder: What might happen when people feel that a disfavored law – such as a ruling by a disfavored court – does not really count as law at all?

Legal outcomes often depend on whether conduct is reasonable. But how do we judge what is reasonable? What are the relevant criteria? Legal theorists have long debated these questions. This chapter outlines some of the leading theories. It then describes recent experimental work probing whether those theories align with lay judgments of what is reasonable. The findings indicate that reasonableness is best understood as a hybrid concept – a product of multiple inputs. Working from this perspective, the chapter raises important additional questions about reasonableness – questions that experimental jurisprudence is well suited to explore.

The Old Regime period in which war proved the norm and peace the exception witnessed the development of the modern law of nations. Questions of international law assumed a new urgency as did the status of diplomatic agents. By this time the existence of permanent embassies could still be deplored but no longer questioned, and diplomatic immunity could not be disputed, reinforced as it was by a body of precedent and tradition. This period witnessed first the expansion and later the contraction of diplomatic privilege. European aristocratic society reinforced diplomatic privilege, for the status of the ambassador was inextricably intertwined with that of the ruler. The explosive expansion of diplomats and their staff led many theorists, such as Grotius and Vattel, to analyse the evolving conventions, such as the importance of the civil immunity of the ambassador and the liability of the embassy staff. Practice tended to reinforce privileges identified as personal, that is, attached to the ambassador himself. Of these the exemption from criminal liability was perhaps the most important. Among territorially defined privileges, the right of asylum and the notorious right of quarter were first expanded and later either limited or eliminated.

This chapter is a survey of the legal languages used to govern territory, sovereignty and the right of a ruler within a polity. Debates were heavily dominated by feudal and private law-concepts. Sovereigns maintained the diversity of privileges in the territories ruled in the setting of a composite monarchy. Claims and titles could or could not entail consequences for sovereignty. Reservations and exceptions to full internal sovereignty were not uncommon. Succession quarrels (often causes of war), could be solved by treaty, often in conflict with domestic constitutional rules and principles. Mixed polities (Poland-Lithuania, Holy Roman Empire) offered a broad range of argumentative topoi to either confirm or combat overlordship. Internal German questions could quickly escalate to the field of the law of nations through the game of alliances and guarantees. Although republican forms of monarchy and republican oligarchies were on the decline in the seventeenth and eighteenth centuries, their legal agency was not contested. In extra-European dominions of European sovereigns, the chain of reasoning was significantly lighter, as feudal arguments rarely came into play. Conversely, the agency of subaltern actors in establishing boundaries, or the treatment of native Americans as either allies or subjects provide original avenues of research.

This chapter charts the profound transformations undergone by diplomacy, both secular and papal, in an age of dramatic intellectual, political and military upheaval. Considering both scholarship and practice, the chapter assesses the rise of ‘resident diplomacy’ and highlights the new structures that were put in place in order to manage longer missions. The investigation of the right to send ambassadors reveals persistent traits of pluralism in early modern Europe, while the plurality of diplomatic envoys and roles is taken into account to make the complexity of the notion of diplomatic status more apparent: this status, in fact, cannot be reduced to that of a fully fledged ambassador exclusively committed to the object of their official mission. Information-gathering, negotiation and mediation are singled out as the most significant diplomatic functions. Changes in the conception of diplomatic inviolability and immunity are also considered, and include the emergence of the idea of extraterritoriality concerning both the person of the ambassador and diplomatic premises.

The sixteenth and early seventeenth centuries marked a deep crisis of the international political and legal order of Europe, caused by the Reformation, the emergence of some strong composite monarchies and the discovery of the New World. The chapter maps how the law of nations began to emerge as a new paradigm for the governance of Europe under whose wings rulers, diplomats and scholars attempted to advance claims to an exclusive jurisdiction over international relations by sovereign princes and republics. As such, the ‘law of nations’ functioned as a lever, an argument for power in a period of great clashes between centralising governments, opposing confessions, and regional and local elites, rather than representing a reality. The ultimate success by governments in several important states at the end of the Renaissance was facilitated to a great extent by the patrimonial and transactional nature of the states that allowed to include old, autonomous powers in the machinery of state.

In the great treatises of Gentili and Grotius, the law regulating the ending of war and the restoration were discussed as the third, chronological and logical part of the laws of war. Their conceptualisation of peace was premised on their conceptualisation of war either as an instrument for the vindication of justice or as the settlement of disputes about right. The chapter explains how these theories, and in particular the latter conception, reflected the practices of peacemaking in peace treaties well, focusing on such major issues as the temporal and spatial dimensions of peace, territorial disputes and the place of communitarian interests in a logic that was geared towards the settlement and appeasement of bilateral disputes over dynastic rights.

By the middle of the seventeenth century, a category of sovereign princes and polities had succeeded in monopolising jurisdiction over external relations and the internal machinery of government that allows to speak of sovereign state. The Old Regime saw the further emergence, in governmental and diplomatic practice as well as in learned writings of the paradigm of the law of nations as the preserve of sovereigns. As legal practice and literature, it also expanded in scope and mass to new regulatory fields such as the law of the sea, maritime warfare, neutrality or dispute settlement. The great treatises on the law of nations of the middle of the eighteenth century fleshed out the dualist system of law of nature and of nations that formed one of the intellectual backbones to Grotius’ work into an elaborate framework of the governance of international relations inside Christian Europe and for its imperial expansion outside.