The latest volume of Jurisprudence has been published by Hart
Publishing.
The volume, available here,
includes the following articles:
Nicola Lacey, Institutionalising Responsibility:
Implications for Jurisprudence
In this paper, the author suggest that the historical and
institutional conditions of existence of the concepts which animate legal
argumentation - like the historical and institutional conditions of existence
of certain forms of law - are of interest not only in their own right, but also
because they raise methodological issues for jurisprudence. These include
questions about the relationship between concepts and the social phenomena
which they purport to categorise; about the relationship between philosophical
and other forms of legal theory; and about how a jurisprudence largely
dominated by philosophical methods may be brought into productive dialogue with
other forms of theoretical analysis. Only by broadening both its horizons and
its methods, the author argues, will jurisprudence be capable of illuminating
not only doctrinal analysis within particular jurisdictions at particular
times, but also comparative and historical scholarship.
Marco Goldoni, Montesquieu and the French Model of
Separation of Powers
Constitutional scholarship has put much emphasis on
Montesquieu's principle of separation of powers as developed in the chapter of
'The Spirit of the Laws' devoted to the English constitution (XI, 6). It has
also been quite common to mix up this model of separation of powers with
elements taken from other sections of Montesquieu's masterpiece. The starting
point of this paper is that there is an alternative, second model of separation
powers based on the French monarchy of intermediate powers, which is also an
instantiation of limited government. From this premise, the paper's aim is to
carve out a second version of the principle of separation of powers by focusing
on the different role and nature of judicial power in the English and French
models. It turns out that the French version of the separation of powers is not
based on a strict separation, since it bestows on the higher judicial
intermediate bodies both judicial and legislative functions. This also leads to
a kind of constitutionalism that is 'in between' ancient and modern, as it is
exemplified by Montesquieu's take on the functioning of parliaments. As is typical
of his political thought, he sees this intermediate power as representative of
traditional and conservative social forces but, at the same time, in virtue of
its social status, as an institution which strengthens, by opposing it, the
monarch's legislative rationality, and legally contains political action.
Kenneth R Westphal, Natural Law, Social Contract and
Moral Objectivity: Rousseau's Natural Law Constructivism
Rousseau's Du contrat social develops an important,
unjustly neglected type of theory, which I call 'Natural Law Constructivism'
('NLC'), which identifies and justifies strictly objective basic moral
principles, with no appeal to moral realism or its alternatives, nor to
elective agreement, nor to prudentialist reasoning. The Euthyphro Question
marks a dilemma in moral theory which highlights relations between artifice and
arbitrariness. These relations highlight the significance of Hume's founding
insight into NLC, and how NLC addresses Hobbes's insight that our most
fundamental moral problems concern social coordination. Part 2 systematically
re-examines the core of Rousseau's theory of justice to show that it assigns no
constitutive role to contractual agreement in identifying or justifying basic
normative principles. Part 3 highlights his NLC.
Anna Grear, Law's Entities: Complexity, Plasticity and
Justice
This article locates a theoretical reflection on the form
of legal subjectivity against twenty-first century complexities and pressures,
including the structural complexities visible in biotechnological developments,
new hybridities and numerous contemporary theoretical and practical
manifestations of heterogeneity, multiplicity and complexity emerging in a
range of disciplines, including cybernetics, techno-theory, post-humanism and
ecology. The author defends the theoretical and critical utility of
understanding the legal subject as an explicit (and explicitly limited)
constructus. Criticising the constructed naturalism (and the historical and
contemporary exclusions) of the 'human being' of law, the author suggests that
the language and concept of the 'legal entity' (rather than that of the 'legal
person') draws attention to the patterned 'gap' between law and life (and to
related injustices enacted by the form of the materialisation of legal
subjectivity) while simultaneously providing the degree of theoretical
plasticity now required by the mutable complexities of the twenty-first century
and beyond.
No comments:
Post a Comment