03 December 2013

JOURNAL: Jurisprudence: An International Journal of Legal and Political Thought

JOURNAL: Jurisprudence: An International Journal of Legal and Political Thought

The latest issue of Jurisprudence:  An International Journal of Legal and Political Thought (2013) 4:2,  has been published by Hart Publishing, and is available on IngentaConnect.
Contents include:
Austerity and Stability in Rousseau’s Constitutionalism
Eoin Daly
 For Rousseau, the primary function of the republican constitution is not to contain state power, but rather to cultivate certain personal dispositions and social forms through which the stability of a political order based on the general will can be realised. Thus, his constitutional projects for Corsica and Poland formulate peculiar constitutional devices aimed at fostering a distinctive vision of austerity as the social horizon of republican politics. I outline how Rousseau’s political thought translates to a peculiar conception of constitutionalism as cultivating stability conditions for the realisation of his principles of political right. In particular, I focus on how Rousseau’s conception of austerity illustrates his prescient sense of the source of inequality and domination in liberal societies, insidiously embedded in symbolic and ritual forms. I also address the limitations of austerity as a constitutional antidote to domination in liberal societies.
An Argument for an End to the ‘Critical’/‘Analytical’ Divide
Gavin Byrne
 The perceived split between ‘analytical’ and ‘critical’ traditions in mainstream philosophy is deeply outmoded and no longer relevant. In legal philosophy it persists. This article argues for an end to any treatment of one or other tradition as radically ‘other’. It traces the division to a misunderstanding of the philosophy of Martin Heidegger and its repercussions for normative legal theory. It demonstrates that a truly Heideggerian account of adjudication leads to similar normative conclusions to those of Ronald Dworkin. It further demonstrates that Heidegger’s conception of ‘practical philosophy’ is similar to that of John Finnis. The article concludes with some remarks about the broader implications for how we treat key figures in the history of ideas in all of our theoretical engagements.

Hans Kelsen’s Concept of the ‘Ought’
Robert Alexy
Focusing on Hans Kelsen’s concept of the ‘ought’, the main problem is whether the ‘ought’ qua obligation or the ‘ought’ qua empowerment or competence serves as his fundamental normative concept. Stanley L Paulson has adduced strong textual arguments for the thesis that the fundamental role played by empowerment represented Kelsen’s opinion ever since the late 1930s. But to accept the thesis of the fundamental character of empowerment as an interpretive thesis is not, eo ipso, to accept it as a norm-theoretic thesis. In light of this background, I take up three arguments for conceiving the modality of obligation as being at least as fundamental: the chain argument, the argument from unlawfulness, and the argument from overload. This leads to the conclusion that Kelsen’s ‘ought’ would be incomplete if it did not comprise obligation as a modality that is at least as fundamental as the modality of empowerment or competence Facets of ‘Ought’ in Kelsen’s Pure Theory of Law
Carsten Heidemann
 Any correct assessment of Hans Kelsen’s conception of Ought must take into account, first, that Kelsen’s theory evolved over some 60 years which saw several major changes of its fundamentals; and second, that the Pure Theory must basically be understood as a meta-theory of institutionalised legal science. With these provisos, Kelsen’s explanation of the Ought oscillates between two extremes: at one extreme, the legal Ought is just a formal semantic marker delimiting the realm of the law; at the other, the legal Ought might be conceived of as ‘depersonalised will’. Kelsen’s most profound and fertile explanation, however, identifies the legal norm with the normative judgment of legal science, while the Ought plays the role of a category (in a Kantian sense) vesting the judgment with normative force.

Primitive Law
Christoph Kletzer
 This paper considers an instance of Ancient Germanic Law in order to open up a new perspective on understanding the nature and functioning of our modern law. The paper claims, along Kelsenian lines, that the law should be understood as an organisation of force and an interpretation of violence. The law orders society by schematising interpretation. The law orders society not by demanding or prohibiting action, but by allowing a certain interpretation of states of affairs, ultimately, the interpretation of violence as legally irrelevant. Ultimately, the law creates peace by interpretation: by allowing us to interpret certain forms of violence as legally irrelevant, the law monopolises force and creates a coercive order that pacifies the land.

Review Symposium
Four reviews of Margaret Gilbert, A Theory of Political Obligation, with a response from Margaret Gilbert
Reasons and Decisions
Diane Jeske

Plural Subjects and Political Obligations
John Horton

Gilbert on Commitment and Intention
Frederick Stoutland

Gilbert on Political Obligation
Jan Narveson

 A Theory of Political Obligation: Responses to Jeske, Horton, Stoutland and Narveson
Margaret Gilbert

The Quest for a Constitutional Perspective: A review of Poul F Kjaer, Gunther Teubner and Alberto Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation 
Emilios Christodoulidis
Law as a Claim-Maker: A review of Stefano Bertea, The Normative Claim of Law
Bebhinn Donnelly-Lazarov
Self-Ownership, Liberal Neutrality and the Realm of Freedom: New Reflections on the Justification of Basic Income. A review of Axel Gosseries and Yannick Vanderborght (eds), Arguing about Justice: Essays for Philippe Van Parijs
Simon Birnbaum
Between Institutional and Moral Discourse: On Alexy’s Legal Philosophy. A review of Matthias Klatt, Institutionalized Reason: The Jurisprudence of Robert Alexy
John Adenitire
 4th Annual Jurisprudence Lecture 
Professor Thomas Pink will deliver the 4th Annual Jurisprudence Lecture. The lecture, entitled: 'Law and the normativity of obligation', will be chaired by Professor George Pavlakos on Friday 31st January 2014 at 6.00pm in Clement House, Room 6.02 at the London School of Economics. A reception will follow from 7pm in the Senior Common Room in the Old Building. For further information about Professor Pink’s lecture please click on the following link: http://www.hartpub.co.uk/4thJurisprudencelecture.pdf
If you haven’t already booked your place and you would like to attend the lecture please e-mail Jo Ledger at Hart Publishing jo@hartpub.co.uk or call Hart Publishing on 01865 517530. Please note that bookings have to be made with Hart Publishing by the 17th January 2014.

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