The Philosophy Of Legal Change

Democratic legal systems have recently been subject to rapid and multi-directional processes of change. There are numerous sociological, technological, ideological, or purely political processes which result in law’s amendment and transformation. This book argues that this legal change is best understood from a political philosophy perspective. This can be used as an interpretative device to understand the ongoing processes of change as well as their outcomes such as new laws, judicial interpretations, or constitutional amendments. The work has three main objectives: to provide deeper understanding of the problems of legal change within the diversity of Western political and legal thought; to examine the development of the processes of change in terms of their normative and prudential acceptability; to interpret actual processes of change with a view to the general theoretical and normative background. The book is divided into three parts: Part I sets the scene and is focused on the general issues important for understanding and evaluating legal change from the perspective of political philosophy; Part II focuses on the spectrum of politico-philosophical justifications present in the political culture of democratic states; Part III offers selected case studies to specify and apply the philosophical ideas in the previous parts. The book will be a valuable resource for students and scholars of law and jurisprudence, including comparative legal studies and human rights law, political theory, and philosophy.

The book explores a variety of problems connected to philosophy and philosophy of law. It discusses the problem of monism-pluralism in philosophy and philosophy of law, criticizes philosophy of post-positivism and postmodernism, and investigates dialectics as a universal global methodological basis of scientific cognition and philosophy of law. The volume also pays particular attention to contemporary legal education, offering potential solutions to problems in this field. The book is the result of a range of sociological studies conducted both in Russia and abroad concerning the legal process and legal consciousness.

"Simultaneously published in the USA and Canada."

The concept of law lies at the heart of our social and political life. Legal philosophy, or jurisprudence, explores the notion of law and its role in society, illuminating its meaning and its relation to the universal questions of justice, rights, and morality. In this Very Short Introduction Raymond Wacks analyses the nature and purpose of the legal system, and the practice by courts, lawyers, and judges. Wacks reveals the intriguing and challenging nature of legal philosophy with clarity and enthusiasm, providing an enlightening guide to the central questions of legal theory. In this revised edition Wacks makes a number of updates including new material on legal realism, changes to the approach to the analysis of law and legal theory, and updates to historical and anthropological jurisprudence. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable.

This book contains the first-time English translation of the main work of Paul Scholten, the General Method of Private Law. The introductory article analyzes Scholten’s view in contrast with a particular combination of Comte’s centralizing optimization program and Neo-Kantian Idealism, which is still dominant in political philosophy. Comte’s sociology and Scholten’s Jurisprudentialism are not presented here in the well-known opposition of Sein and Sollen, but by showing how their different views on scientific method are grounded in opposite views on the philosophical, political and ethical meaning of human action. Neo-Kantianism adheres to Comte’s view, while Scholten adheres to the Aristotelian view, as it had developed in Christianity and had provided the protestant foundation of the Dutch Republic in the seventeenth century. Comte attacks Aristotelian Protestantism, which he characterizes as the metaphysical stage of the Western development of state: negative, protestant, constitutional and juridical. Scholten’s views oppose the inherent trend towards centralization in Comte’s program to cover all aspects of optimization for the best of all, ever better. That branch of political philosophy not only has shaky foundations in scientific method but also has reached its boundaries of operational applicability. Scholten’s views oppose the emphasis in Comte’s program on a unified general will and stress the need for accepting the existence of deeply conflicting philosophies of life in society. This has consequences for the organization of democracy regarding independence of specialized agencies, the role of civil society and the voting system. It not just holds for the state level but also for Unions and supranational organizations. The legal system plays a key role in this development. Scholten’s views and activities have had great posthumous impact for the reconstruction of society and politics in the first years after World War II. They contributed to the collaboration between the different denominations in the Protestant church, opened up the social-democratic party to different denominations and helped develop the cooperation of different Christian parties, leaving the cleavages of the pre-war political spectre behind. Authors and open reviewers who have contributed to the DPSP project, have a broad international background, apart from the Netherlands: Finland, Germany, Austria, France, Italy, United Kingdom, Brazil, United States and Indonesia. Indonesia plays a substantial role in the book, as Scholten played a main role in setting up the legal education system in what was then the Netherlands Indies. Chapters 1. Paul Scholten, Aristotelian Protestantism in Dutch Legal Philosophy. Liesbeth Huppes-Cluysenaer (p.1) 2. Paul Scholten’s Life. Rogier Chorus, Liesbeth Huppes-Cluysenaer, Jacqueline Schoonheim (p.28) 3. General Method of Private Law. English translation of the First Chapter of the General Volume of the Asser-serie on Dutch Civil Law, written by Paul Scholten. Liesbeth Huppes-Cluysenaer, Marjanne Termorshuizen-Arts, Cassandra Steer, Paul Scholten (p.37) 4. Jumping Judges, Judicial Discovery of Law. Niels van Manen (p.225) 5. From a Legal Order to a Legal System, Scholten’s Contribution to a Theory of Legal Change. Jean-Louis Halpérin (p.249) 6. Law and Context, Scholten’s Open System of Law and Legal Harmonisation. Jaakko Husa (261) 7. Case-Based Reasoning and Formulary Procedure, A Guard against Individual Emotions. Marco Gardini (p.287) 8. Kelsen and Scholten on Reason and Emotion in Solving Cases. Nuno M.M.S. Coelho (p.315) 9. Trembling Necessity and Analogy, Juridical Reason as Judgment by the Similar. Luciano de Camargo Penteado (p.334) 10. Paul Scholten and the Founding of the Batavia Rechtshogeschool. Upik Djalins (p.354) 11. In Search of Scholten’s Legacy, The Meaning of the Method of Rechtsvinding for the Current Indonesian Legal Discourse. Shidarta (p.396) 12. Scholten’s Reflections on Judge’s Practices, An Apology of the Mystery of the Legal Craft. Robert Knegt (p.443) 13. The Reception of the Work of Paul Scholten in the Netherlands. Marjanne Termorshuizen-Arts (p.465) 14. Re-Appraising Paul Scholten, His Influence on the Development of a National Legal System in Indonesia. Tristam P. Moeliono (p.495)