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

Administrative / Constitutional Law

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

Edited by Paul Cliteur · Afshin Ellian
CRC Press April 2019

Specifications

ISBN-13
9780367112356
Publisher
CRC Press
Publication
April 2019
Format
Paperback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

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.

Table of Contents

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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