Analytical Legal Naturalism

In legal jurisprudence, the phenomenon of “hard cases” presents itself as a dilemma between the legal positivists and the natural law realists. Of the former, without the metaphysical underpinnings of an objective legal or moral standard, the legal positivists cannot supply convincing arguments to supplant the sovereign as the origin and authority of law. The natural law realists face the problem of justifying the natural law. Against both views, S. Zinaich Jr. defends a middle position, Analytical Legal Naturalism (ALN). It represents an analytic norm, both necessarily true and known a posteriori. Against the legal positivists, it supplies an objective legal standard by removing--at least for hard cases--the necessity of the will of a sovereign authority. Against the natural law realists, ALN provides a nonmoral standard which, because of its analyticity and necessity, avoids the need for metaethical speculation. Finally, ALN provides a standard that not only supplies the universalizable punch to avoid political subjectivism, but does so in a conventional manner. Thus, ALN does not require a moral or modal reality as truth-making characteristics. Rather, it makes what is legally valuable or disvaluable dependent upon empirically verifiable facts that are legally relevant.

Analytical jurisprudence has been mostly silent on the role of precedent in legal adjudication. What is the content of a judge's precedent ideology,or the rule of precedent-recognition, by means of which the ratio of a case is to be distinguished from mere dicta? In this study, the author identifies six types of judicial precedent-ideology, among them judicial legislation, systemic construction of the underlying reasons of law in the Dworkinian sense, and a radical re-evaluation of the merits of a prior case in later adjudication, as envisioned by the American Realists. These competing models are tested against judicial experiences in the UK, US, France, Italy, Germany and Finland. By this means Lon Fuller's famous 'internal morality of law' is shown to function rather poorly in the context of precedents, and the author therefore suggests a redefinition of the rule which makes it work for precedent. This, in turn leads the author to confront fundamental questions about the normative nature of law. Is Kelsen's grundnorm or Hart's ultimate rule of recognition a valid rule, in the image of legal rules proper, or is it merely a social fact, observable only in the practices and behaviour of judges and other officials? The author claims that Hart is caught between Kelsen and J.L. Borges, the late Argentinian fabulist, in so far as the ontology and epistemology of the rule of recognition are concerned. This leads the author to the conclusion that the two predicaments affecting analytical positivism, namely the threat of endless self-referentiality, or infinite regress, can only be accounted for by means of recourse to the philosophy of deconstruction as posited by Jacques Derrida.

Understanding the Nature of Law explores methodological questions about how best to explain law. Among these questions, one is central: is there something about law which determines how it should be theorized? This novel book explains the importance of

In A Comparative Analysis of Cicero and Aquinas, Charles P. Nemeth investigates how, despite their differences, these two figures may be the most compatible brothers in ideas ever conceived in the theory of natural law. Looking to find common threads that run between the philosophies of these two great thinkers of the Classical and Medieval periods, this book aims to determine whether or not there exists a common ground whereby ethical debates and dilemmas can be evaluated. Does comparison between Cicero and Aquinas offer a new pathway for moral measure, based on defined and developed principles? Do they deliver certain moral and ethical principles for human life to which each agree? Instead of a polemical diatribe, comparison between Cicero and Aquinas may edify a method of compromise and afford a more or less restrictive series of judgements about ethical quandaries.

This book offers a critical appraisal of Karl Olivecrona’s legal philosophy. Based on Olivecrona’s critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, the book argues that Olivecrona’s legal philosophy is a unique contribution to twentieth century legal philosophy. It shows how Olivecrona’s philosophy can be used in the assessment of contemporary theories of law, such as those put forward by Hart, Raz, Dworkin, and Alexy. In addition, the book argues that Olivecrona’s various discussions of theories defended by key people in the history of legal and political philosophy are highly interesting contributions. They not only increase our understanding of the legal and political philosophy of previous generations, but also enhances our insight into legal-philosophical questions that remain with us today.

At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power.

Selected byChoice magazine as an Outstanding Academic Title

This new critique of Aquinas's theory of natural law discusses the background of the theory in Aristotle and advances new interpretations of contemporary legal issues which hark back to Aquinas.