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morrison w jurisprudence from greeks post modernism 2014

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Textbook in PDF format 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

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morrison w jurisprudence from greeks post modernism 2014