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A New Introduction to Jurisprudence: Legality, Legitimacy and the Foundations of the Law

A New Introduction to Jurisprudence: Legality, Legitimacy and the Foundations of the Law

Author: Paul Cliteur; Afshin Ellian
Publisher: CRC Press
ISBN: 9780367112356
Published In: April 2019
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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A New Introduction to Jurisprudence takes one of the central problems of law and jurisprudence as its point of departure: what is the law? Adopting an intermediate position between legal positivism and natural law, this book reflects on the concept of ‘liberal democracy’ or ‘constitutional democracy’.

In five chapters the book analyses (i) the idea of higher law, (ii) liberal democracy as a legitimate model for the state, (iii) the separation of church and state or secularism as essential for the democratic state, (iv) the universality of higher law principles, (v) the history of modern political thought.

This interdisciplinary approach to jurisprudence is relevant for legal scholars, philosophers, political theorists, public intellectuals, historians, and politicians.

Preface

Chapter 1: Legality and Legitimacy in Natural Law and Legal Positivism

Five Characteristics of Natural Law

Plato

Teleology

Man as a Rational Being

Metaphysical Principles

Absolute Validity

A Touchstone

Objections

Sein and Sollen

Empty Formulas

Feelings

Evaluation of the Objections

Lon Fuller

Natural Law, a Form of Morality?

Judge and Conductor

Ubi Societas, Ibi Ius

Again: Empty Formulas

Alternative Natural Law

Perelman and Hayek

Hayek on Spontaneous Order

Tradition

A Touchstone for the Law

Gustav Radbruch

H.L.A. Hart

The Hart-Fuller Debate

A Synthesis

Lex Iniusta Non Est Lex?

Chapter 2: Democracy and the Rule of Law as a Legitimate Form of Government

Postmodernism

Liberal Democracy

Democracy

The Rule of Law and "Rechtsstaat"

Five Principles of the Rule of Law

The GPM

Humanism

Humanism and the Rule of Law

The Tension Between Entrenchment and Democracy

Paine and Burke

Judicial Review

Contradictions Between the GPM

Two Consequences

The End Thesis Revisited

Chapter 3: The Separation of Church and State

Bishop Nazir-Ali

Nazir-Ali Under Criticism

Theoterrorism and the Agnostic State

The Atheist State

The Theocratic State

Saudi-Arabia as a Theocratic State

Prosecutions and Executions

Cruel Punishments

Phinehas and Moses

Who Are We These Days?

State Religions

The Multiculturalist State

The Agnostic State

Western?

The French Laïcité

Chapter 4: The Universality of Values and Principles

Cultural Conflicts

Live and Let Live

Female Genital Mutilation

The Conflict Defined

Acceptance on the Basis of Respect

Cultural Relativism

Six Cultural Relativists

Herodotus

The Sophists

Protagoras

Montaigne

Sumner

Folkways

Benedict

Socially Approved Habits

Westermarck

Stace, Bloom, and Bork

Dickens and Kipling

Seven Elements of Cultural Relativism

Dworkin on Critical Morality

Critical Morality and Cultural Anthropology

Consistency

Practical Objections

Universality is Indispensable

Hamed Abdel-Samad

Chapter 5: The Classical Foundations of Modern Law

A Modern Worldview

From the Middle Ages to Modern Times

Descartes

Penal Law and Modernity

Enlightenment

Social Contract Theories

Hobbes

Rousseau

Human Rights

Rousseau and Hobbes Revisited

Index

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