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

223 Pages·2019·4.4 MB·English

by  Paul Cliteur, Afshin Ellian

A New Introduction to Jurisprudence
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.
Thisinterdisciplinary approachtojurisprudenceisrelevantforlegalscholars,
philosophers, political theorists, public intellectuals, historians, and politicians.
PaulCliteurisProfessorofJurisprudenceatLeidenUniversity,theNetherlands.
He is the author of The Secular Outlook (2010) and Theoterrorism v. Freedom
of Speech (forthcoming).
Afshin Ellian is Professor of Jurisprudence at Leiden University, the Nether-
lands. He edited The State of Exception and Militant Democracy in a Time of
Terror (2012) and Counterterrorism after the IS-Caliphate (forthcoming).
This page intentionally left blank
A New Introduction
to Jurisprudence
Legality, Legitimacy, and the Foundations of
the Law
Paul Cliteur and Afshin Ellian
Firstpublished2019
byRoutledge
2ParkSquare,MiltonPark,Abingdon,OxonOX144RN
andbyRoutledge
52VanderbiltAvenue,NewYork,NY10017
RoutledgeisanimprintoftheTaylor&FrancisGroup,aninformabusiness
©2019PaulCliteurandAfshinEllian
TherightofPaulCliteurandAfshinElliantobeidentifiedasauthorsofthis
workhasbeenassertedbytheminaccordancewithsections77and78ofthe
Copyright,DesignsandPatentsAct1988.
Allrightsreserved.Nopartofthisbookmaybereprintedorreproducedor
utilisedinanyformorbyanyelectronic,mechanical,orothermeans,now
knownorhereafterinvented,includingphotocopyingandrecording,orinany
informationstorageorretrievalsystem,withoutpermissioninwritingfromthe
publishers.
Trademarknotice:Productorcorporatenamesmaybetrademarksorregistered
trademarks,andareusedonlyforidentificationandexplanationwithoutintent
toinfringe.
BritishLibraryCataloguinginPublicationData
AcataloguerecordforthisbookisavailablefromtheBritishLibrary
LibraryofCongressCataloging-in-PublicationData
Names:Cliteur,P.B.,author.|Ellian,Afshin,1966-,author.
Title:Anewintroductiontojurisprudence:legality,legitimacyandthe
foundationsofthelaw/PaulCliteur,AfshinEllian.
Description:NewYork,NY:Routledge,2019.|Includesbibliographical
referencesandindex.
Identifiers:LCCN2018055139|ISBN9780367112349(hardback)|ISBN
9780367112356(pbk.)
Subjects:LCSH:Jurisprudence.|Law--Philosophy.
Classification:LCCK230.C595.A352019|DDC340/.1--dc23
LCrecordavailableathttps://lccn.loc.gov/2018055139
ISBN:978-0-367-11234-9(hbk)
ISBN:978-0-367-11235-6(pbk)
ISBN:978-0-429-02546-4(ebk)
TypesetinSabon
byTaylor&FrancisBooks
Contents
List of figures viii
Preface ix
Acknowledgment of sources xiii
1 Legality and legitimacy in natural law and legal positivism 1
Five characteristics of natural law 4
Plato 6
Teleology 7
Man as a rational being 9
Metaphysical principles 10
Universal validity 10
A touchstone 11
Objections 12
Sein and Sollen 14
Leerformeln 15
Feelings 16
Evaluation of the objections 17
Lon Fuller 17
Natural law, a form of morality? 18
Judge and conductor 19
Ubi societas, ibi ius 20
Again: empty formulas? 20
Alternative natural law 21
Perelman and Hayek 22
Hayek on spontaneous order 23
Tradition 25
A touchstone for the law? 26
Gustav Radbruch 27
vi Contents
H.L.A. Hart 29
The Hart-Fuller debate 30
A synthesis 30
Lex iniusta non est lex? 32
2 Constitutional democracy as a legitimate form of government 36
Postmodernism 37
Constitutional democracy 40
Democracy 42
Constitutionalism 43
Five principles of constitutionalism 46
The CCP 57
Humanism 59
Humanism and constitutionalism 61
Tension between entrenchment and democracy 62
Paine and Burke 63
Judicial review 65
Contradictions within the CCP 66
Two consequences 68
The end of history thesis again 72
3 The separation of church and state 75
Bishop Nazir-Ali 76
The atheist state 85
The theocratic state 87
The state with a state religion 99
The multicultural or multireligious state 102
The secular or agnostic state 106
4 The universality of values and principles 114
Cultural conflicts 115
Live and let live 117
Female genital mutilation 118
The conflict further defined 119
Tolerance out of respect 121
Cultural relativism 122
Six cultural relativists 123
Stace, Bloom, and Bork 140
Dickens and Kipling 142
Contents vii
Seven elements of cultural relativism 145
Criticism of cultural relativism 150
Dworkin on “critical morality” 150
“Critical morality” and cultural anthropology 153
Consistency 155
Practical objections 158
Universality is indispensable 158
Hamed Abdel-Samad 162
5 The classical foundations of modern law 165
The modern worldview 167
From the Middle Ages to the modern era 169
Descartes 171
Criminal law and modernity 173
Enlightenment 178
Contract thinkers 180
Human rights 190
Rousseau and Hobbes again 194
Index 200
Figures
1.1 On June 11, 1776, the American Congress appointed a committee
offivememberstaskedwithdraftingadeclarationofindependence.
These members were John Adams, Benjamin Franklin, Thomas
Jefferson, Robert R. Livingston, and Roger Sherman. In Jean Leon
Gerome Ferris’s painting (1900), we see the committee at work. In
a little over two weeks, Jefferson wrote a first draft, which was
presented to Congress on June 29, 1776. 2
1.2 Socrates in his cell. After the Athenian authorities have sentenced
him to drinking poison hemlock, he spends his last hours with his
pupils, Plato among them. The painting The Death of Socrates
(1762) is by Jacques-Philip-Joseph de Saint Quentin. 8
1.3 The Scottish philosopher David Hume, 1711–1776, painted here by
Allan Ramsay in 1766, mostly became famous for his skeptical
approach to the principle of causality. We do not see the cue’s
thrust causing the roll of the snooker ball, but we do interpret
reality in that way. 26
3.1 Israel worships the Baal Peor and Phineas kills Zimri and Cozbi,
Maerten de Vos. 97
Preface
The book A New Introduction to Jurisprudence: Legality, Legitimacy, and the
Foundations of Law is a legal philosophy-flavored introduction to the law. It is
compulsory reading for freshmen law students at Leiden University, the Nether-
lands. The book’s purpose is to give law students a grasp of the “foundations of
law.” The course Foundations of Law is part of the wider course Jurisprudence,
which consists of three parts in Leiden: (i) Introduction to Positive Law, (ii)
Foundations of Law, (iii) and Methods and Techniques of Legal Science.
The course Jurisprudence can be designed in different ways, as the historical
development of the course demonstrates. Generally considered the first Pro-
fessor of Jurisprudence isJohn Austin (1790–1859), with his book The Province
of Jurisprudence Determined (1832). He was the first to give the course inde-
pendent status. Before, there had, of course, also been thinking on law, state,
democracy, constitutionalism, just punishment, just war, and other subjects
that are covered in Jurisprudence, but it had always (as in Plato, Aristotle, and
Thomas Aquinas) been part of a general philosophy. Austin turned Jur-
isprudence into a legal specialty, although a specialty of the most general
nature, because it is the most general course that is taught at law faculties.
(LooselyquotingDutch historian Jan Romein [1893–1962], onecould saythata
practitioner of Jurisprudence is specialized in the general.)
* * *
Most handbooks in Jurisprudence feature a mix of subjects that are expected
toofferjuristsanintensificationoftheirstudyofpositivelaw.InJurisprudence:
The Philosophy and Method of the Law (1962), Edgar Bodenheimer (1908–
1991), a German scholar who immigrated to the Unites States in 1933 (Berlin,
California), presents a historic introduction to legal philosophy that covers the
classical movements of “utilitarianism,” “analytical positivism,” “sociological
jurisprudence and legal realism,” and “the revival of natural law and value-
oriented jurisprudence.” This is supplemented by a thematic part in which “the
need for order,” “the quest for justice,” “the rule of law,” and “law as a
synthesis of order and justice” are discussed.