Jurisprudence: Themes and Concepts

321 Pages·2012·1.729 MB·English

by  Scott Veitch, Emilios Christodoulidis, Lindsay Farmer

Second
edition
‘This book is the best introduction to the study of jurisprudence I have come
across. It provides students with a systematic and well-balanced approach…while
also concretely illuminating the social significance of the law. The tutorials are very
helpful in contextualizing the rich material presented by some of the UK’s leading J
U JURISPRUDENCE
contemporary legal theorists.’ – Hans Lindahl, Professor of Legal Philosophy,
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Tilburg University, The Netherlands
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‘A thoughtful and reflective approach; one that is not only sensible, but long P
THEMES AND CONCEPTS
overdue.’ – David Seymour, Lancaster University, UK R
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Jurisprudence: Themes and Concepts offers an original introduction to, and critical D
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analysis of, the central themes studied in jurisprudence courses. The book is E econd dition
presented in three parts each of which contains general themes, advanced topics, N
tutorial questions and guidance on further reading:
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• Law and Politics, locating the place of law within the study of institutions of
government
• Legal Reasoning, examining the contested nature of the application of law
• Law and Modernity, exploring the social forces that shape legal development.
This second edition includes enhanced discussion of the rise of legal positivism
within the context of the rise of the modern state, the changing role of natural and S
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human rights discourse, concepts of justice in and beyond the nation state, the O
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impact of emergency doctrines in contemporary legal regulation, and challenges to T
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the rule of law in light of shifting and competing demands for new types of E
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social solidarity. ATC
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take into account the latest developments in jurisprudential scholarship. NI
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Scott Veitch is Professor of Jurisprudence at the University of Hong Kong. AY FAS CH
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Emilios Christodoulidis is Professor in Legal Theory at the University of Glasgow. MI
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Lindsay Farmer is Professor of Law at the University of Glasgow. D
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Jurisprudence and Legal Theory LI
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Cover image: © Shutterstock
SCOTT VEITCH,
www.routledge.com EMILIOS CHRISTODOULIDIS
AND LINDSAY FARMER
Jurisprudence
Themes and Concepts
SECOND EDITION
Jurisprudence: Themes and Concepts offers an original introduction to, and critical
analysis of, the central themes studied in jurisprudence courses. The book is
presented in three parts each of which contains general themes, advanced topics,
tutorial questions and guidance on further reading:
● L aw and Politics, locating the place of law within the study of institutions of
government
● Legal Reasoning, examining the contested nature of the application of law
● Law and Modernity, exploring the social forces that shape legal development.
This second edition includes enhanced discussion of the rise of legal positivism
within the context of the rise of the modern state, the changing role of natural and
human rights discourse, concepts of justice in and beyond the nation state, the impact
of emergency doctrines in contemporary legal regulation, and challenges to the rule
of law in light of shifting and competing demands for new types of social solidarity.
A ccessible, interdisciplinary, and socially informed this book has been revised
to take into account the latest developments in jurisprudential scholarship.
Scott Veitch is Professor of Jurisprudence at the University of Hong Kong.
Emilios Christodoulidis is Professor in Legal Theory at the University of Glasgow.
Lindsay Farmer is Professor of Law at the University of Glasgow.

Jurisprudence
Themes and Concepts
SECOND EDITION
Scott Veitch, Emilios Christodoulidis
and Lindsay Farmer
Second edition published 2012
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2012 Scott Veitch, Emilios Christodoulidis and Lindsay Farmer
Previous editions published by Routledge-Cavendish
First edition 2007
The right of Scott Veitch, Emilios Christodoulidis and Lindsay Farmer to be
identifi ed as authors of this work has been asserted by them in accordance
with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
Trademark notice : Product or corporate names may be trademarks or
registered trademarks, and are used only for identifi cation and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging in Publication Data
A catalog record for this book has been requested.
ISBN: 978-0-415-67972-5 (hbk)
ISBN: 978-0-415-67982-4 (pbk)
ISBN: 978-0-203-11895-5 (ebk)
Typeset in Times New Roman
by Refi neCatch Limited, Bungay, Suffolk
For Neil MacCormick (1941–2009), teacher and friend

Contents
Acknowledgements and attributions xi
Notes on contributors xiii
Abbreviations xiv
Introduction 1
PART I: LAW AND POLITICS 7
1 General themes 9
1.1 Introduction to the relationship between law and politics 10
O n power – political power and legal power 10
Elements of the constitutional state 11
Jurisdiction, state and legal system 13
1.2 Sovereignty 15
Sovereignty: a contested concept 15
Attributing sovereignty – to whom or what? 16
Post-sovereignty? 18
1.3 The rule of law and the ‘inner morality of law’ 20
The rule of law – meaning and value 20
Challenges to the rule of law 20
An inner morality of law 22
1.4 Rights 26
Civil, political and social rights 28
Politicising law – legalising politics 29
The indivisibility of rights? 30
Rights in international and global context 31
1.5 Identifying valid law 33
Hart’s concept of law 35
Kelsen’s pure theory of law 38
Legality and validity 40
Injustice and invalidity 44
2 Advanced topics 50
2.1 Justice 51
Introduction 51
Utilitarianism versus libertarianism 52
Liberalism: Rawls’s justice as fairness 56
Socialism 59
viii | CONTENTS
2.2 Constitutionalism and citizenship 65
The paradox of constitutionalism 65
Representation and foundation 67
Constitutional ‘moments’ 68
Citizenship: liberal and republican 70
2.3 Law, politics and globalisation 74
Globalisation and the reconfi gured State 74
Sovereignty after globalisation 75
Constitutionalism beyond the State 78
2.4 Law and the state of emergency 81
Emergency, derogation and the ‘war’ on terror 81
Carl Schmitt: Sovereignty and the exception 84
2.5 The rule of law in political transitions 88
Dilemmas of the rule of law 88
Diffi culties in establishing accountability and responsibility 89
Forms of justice 90
Tutorials 96
PART II: LEGAL REASONING 111
1 General themes 113
1.1 Introduction to legal reasoning 114
1.2 Legal formalism 117
What is formalism? 117
The ‘pure theory of law’ and the notion of
self-containment 118
Formalism and deduction 120
The promise of formalism 122
1.3 American Legal Realism 123
‘The Path of the Law’: law as prophecy 125
Rule-scepticism 126
Fact-scepticism 128
The faith in science 129
1.4 Rules, ‘open texture’ and the limits of discretion 131
HLA Hart and the ‘open texture’ of legal language 131
Neil MacCormick: the defence of an ‘extended formalism’ 133
1.5 Law as a practice of interpretation 137
Dworkin on ‘hard’ cases 137
The ‘right answer’: law as integrity 140
1.6 Critical Legal Studies 142
2 Advanced topics 148
2.1 Justice, natural law and the limits of rule-following 149
M oral reason and hard cases 149
John Finnis and the morality of the law 150
CONTENTS | ix
2.2 Equality, difference and domination: feminist critiques of
adjudication 154
Initial challenges 154
Critiquing the f orm of legal reasoning 155
Comparing approaches 157
2.3 Trials, facts and narratives 159
The legacy of fact-scepticism 159
Trials and perceptions of fact: language and narrative
in the courtroom 162
Trials, regulation and justice 165
2.4 Judging in an unjust society 168
2.5 Law and deconstruction 174
Tutorials 187
PART III: LAW AND MODERNITY 201
1 General themes 203
1.1 The advent of modernity 204
1.2 Law and social solidarity 210
1.3 Law, power and exploitation 215
The function of law 218
Ideology 219
Marxists and the law 222
1.4 Formal legal rationality and legal modernity 224
Forms of legal rationality 224
Forms of political authority 226
The development of legal modernity 228
1.5 Transformations of modern law 233
The materialisation of modern law 233
Law in the welfare state 235
The welfare state and globalisation 239
‘Unthinking’ modern law 241
2 Advanced topics 247
2.1 Legal pluralism 248
C lassical and contemporary legal pluralism 248
Strong and weak legal pluralism, and the position of
the State 250
Empirical, conceptual and political approaches to
legal pluralism 251
Future directions in legal pluralism 253
2.2 Juridifi cation 255
Introductory remarks 255
Habermas on juridifi cation 257
Juridifi cation and the ‘regulatory trilemma’ 258