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Edited by
Marietta Auer, Max Planck Institute for Legal History and Legal Theory,Paul B. Miller, University of Notre Dame, Indiana,Henry E. Smith, Harvard Law School, Massachusetts,James Toomey, University of Iowa
Reinach believed that basic legal concepts exist, that their existence is independent of the positive law, and their existence is independent of moral obligation. In this idiosyncratic juxtaposition of positions, Reinach is joined by contemporary theorists drawing on evolutionary psychology and cognitive science in jurisprudence. But Reinach emphatically insisted that his claims were ontological, not psychological. This chapter explains why. For Reinach himself, the ontological status of legal concepts was one front in a broader debate over whether basic mathematical and logical concepts were true a priori or features of human psychology; a demonstrative project in the breadth of the a priori. But it is suggested that today’s theorists need not be as preoccupied with this distinction as Reinach was. Not only is the practical difference between ontological and evolutionary theories not as wide as Reinach seems to have assumed, but arguments for metaphysical reality in other domains are substantially less persuasive as applied to Reinach’s legal concepts.
Edited by
Marietta Auer, Max Planck Institute for Legal History and Legal Theory,Paul B. Miller, University of Notre Dame, Indiana,Henry E. Smith, Harvard Law School, Massachusetts,James Toomey, University of Iowa
This Introduction situates Reinach and the Foundations of Private Law, and Adolf Reinach, in contemporary currents in private law theory and philosophy.
Edited by
Marietta Auer, Max Planck Institute for Legal History and Legal Theory,Paul B. Miller, University of Notre Dame, Indiana,Henry E. Smith, Harvard Law School, Massachusetts,James Toomey, University of Iowa
This Introduction situates Reinach and the Foundations of Private Law, and Adolf Reinach, in contemporary currents in private law theory and philosophy.
Edited by
Marietta Auer, Max Planck Institute for Legal History and Legal Theory,Paul B. Miller, University of Notre Dame, Indiana,Henry E. Smith, Harvard Law School, Massachusetts,James Toomey, University of Iowa
This chapter critically examines the treatment of concepts of legal personality and representation provided by the great (if lamentably now mostly forgotten) German realist phenomenologist Adolf Reinach. In The A Priori Foundations of the Civil Law (1913), Reinach offers what is meant to be a phenomenological elucidation of the a priori nature (essential formal characteristics) of a wide variety of foundational legal concepts, the latter understood as denoting distinctive modalities of speech act. The primary interest of the chapter lies in the analysis that Reinach provides of concepts of personality and representation. However, one cannot understand what is distinctive in – and distinctively compelling or puzzling about – Reinach’s analysis of these concepts without appreciating what is distinctive about his general methodology of conceptual analysis (i.e., his phenomenological, speech act theoretical understanding of social behavior denoted by legal concepts). Thus, in addition to examining Reinach’s views on persons, legal personhood, and legal representation, the chapter provides a critical introduction to Reinachian conceptual analysis and explains its enduring interest for contemporary private law theory.
This introductory article challenges foundational assumptions that structure how international legal theory conceptualizes “the Global.” The prevailing approach remains anchored in a Eurocentric legacy that conflates the earth with a geometrically spherical, chronometrically linear, and cartographically fixed model of space and time. This triad has rendered “the Global” an ostensibly objective terrain—embodied by an iconic World Map of states that is presumably atheoretical and transhistorical. I argue this is a form of “misplaced concreteness,” which constrains international legal thought as it confronts increasingly fluid and non-contiguous patterns of global ordering that have become difficult to visualize via the reigning cartographic imaginary. Further, it ignores how “the Global” was constructed by multiple and intersecting types of power, which together manifested demarcations, borders, territories and states as proclaimed mimetic reflections of planetary reality. As contemporary challenges—ranging from e.g. climate change to cyber governance—create trans-territorial or planetary scales of consequence, time is ripe to unfold international legal theory beyond the legacy of a priori conceptualization. Accordingly, the special issue encourages bottom-up, practice-oriented approaches, inviting international lawyers to explore how global spatiality and temporality are actively (re)produced across diverse legal contexts—from mobility regimes and global value chains to counterterrorism forums and planetary systems. Rather than treating “the Global” as a fixed totality or singular map, this special issue reframes it as a historically engineered concept, shaped by ongoing practices of geo-political, geo-economic and legal world-making.
This Article advocates for conceptualizing law as a design science, with a comprehensive approach that integrates formal, explanatory, and design dimensions of legal knowledge. By embracing the empirical aspects of legal scholarship, this perspective challenges the traditional image of lawyers as solely reliant on linguistic constructs. Instead, it positions them as social engineers capable of shaping legal norms and interpretations in alignment with societal needs. Through analysis and illustration of its application in diverse factual contexts, the Article underscores the necessity for this evolution in contemporary legal scholarship, particularly as teleological interpretation gains prominence in legal practice.
Explores theoretical foundations, philosophical challenges, and epistemological issues in human rights law. The concept of human rights requires a deep theoretical exploration to understand that all individuals possess fundamental rights irrespective of their nationality or social status. The establishment of international human rights law faces skepticism due to its philosophical indefinability and potential inconsistencies. Scholars often describe the legal framework but avoid deep philosophical inquiries, which creates an epistemological disconnect between philosophy and law, and between law and justice. This chapter aims to bridge these gaps by delving into the elusive theory of human rights, examining how different philosophical perspectives can influence the understanding and application of human rights law. It argues for the necessity of integrating philosophical discourse with legal analysis to achieve a coherent and just human rights framework.
This Article provides the outline for a conceptual framework focusing on legal infrastructures, comprised of socio-material assemblages and entangled legal normativities that both enable and constrain human societies. Section A introduces the growing transdisciplinary field of infrastructural studies, which employs the notion of infrastructure as a tool for analyzing the constitutive relationship between society and essential material structures. It then draws out the analytical conjunction of law and infrastructure in the role ascribed to law within existing applications of infrastructural studies and the nascent engagement with infrastructural theory within the legal discipline itself. Part II develops a conceptual framework on legal infrastructures, outlining three avenues for how thinking infrastructurally may yield new perspectives on the dynamic relationship between law, social practices, and socio-technical materiality; (a) legal infrastructures as socio-material formations that generate societal effects (b) legal infrastructures as schemes of social practice that recursively entangle to produce new configurations, and (c) legal infrastructures as distributing norms across transnational and regime boundaries.
Chapter 2 explores how Etienne Wenger’s theory of communities of practice translates to the context of international law and the concept of a special regime. According to Wenger, a community of practice is defined by the presence of three structural elements: there must be a mutual engagement of community members; community members must be engaged in a joint enterprise; and they must have a shared repertoire. Chapter 2 draws up the contours of a methodology that will help the classically trained legal scholar to justify propositions categorizing segments of the international legal system as special regimes, based on the idealist’s conception of a special regime. As the chapter demonstrates, the task needed to justify a suggestion that some subpart of the international legal system is a special regime is not significantly different from many investigations that classically trained legal scholars are already conducting, more or less as a matter of course.
Over the last thirty or so years, international law and legal practice have become increasingly more specialized and diversified. These developments come with an increasingly divergent legal practice, in what has been coined as 'special regimes'. This book proposes a new understanding of the concept of a special regime to explain why specialists in different fields of international law do similar things differently. It argues that special regimes are best conceived as communities of practice, in the sense of Etienne Wenger's theory of communities of practice. It explores how the theory of communities of practice translates to the context of international law and the concept of a special regime. The authors draw up an innovative methodology to investigate their theory, focused on the conduct of community members, and apply this method to selected case studies, offering an original approach to the understanding of the special regimes in international law.
This chapter explores the relationship between homelessness and two prominent conceptions of liberty: positive liberty as self-actualization and negative liberty as non-interference. It sets out how scholars have approached the relationship between homelessness, property, and both forms of liberty. It demonstrates how unhoused persons tend to lack positive and negative liberty.
This Article is dedicated to what is arguably one of the most significant tests to which constitutionalism has been subject to in recent times. It examines the theoretical and practical challenges to constitutionalism arising from the profound technological changes under the influence of artificial intelligence (AI) in our emerging algorithmic society. The unprecedented rapid development of AI technology has not only rendered conventional theories of modern constitutionalism obsolete, but it has also created an epistemic gap in constitutional theory. As a result, there is a clear need for a new, compelling constitutional theory that adequately accounts for the scale of technological change by accurately capturing it, engaging with it, and ultimately, responding to it in a conceptually and normatively convincing way.
Legal experts—lawyers, judges, and academics—typically resist changing their beliefs about what the law is or requires when they encounter disagreement from those committed to different jurisprudential or interpretive theories. William Baude and Ryan Doerfler are among the most prominent proponents of this view, holding it because fundamental differences in methodological commitments severs epistemic peerhood. This dominant approach to disagreement, and Baude and Doerfler’s rationale, are both wrong. The latter is committed to an overly stringent account of epistemic peerhood that dogmatically excludes opponents. The former violates the conjunction of three plausible epistemic principles: Complete Evidence, considering all epistemically permissible evidence; Independence, in which only dispute-independent evidence is epistemically permissible; and Peer Support, which involves epistemically permissible evidence. Instead, I argue for jurisprudential humility—we ought to be more willing to admit we do not know what the law is or requires, and take seriously conflicting views.
The chapter discusses the history of the Berlin housing system, the Kantian roots of the German Constitution (Grundgesetz) and the events leading to the emergence of Deutsche Wohnen & Co. enteignen (DWE). It explains the origins of the liberal notion of property and how corporate property is premised on ‘blasting the atom of property open’, that is, destroying the links between person and a thing that constitute classical liberal understanding of property.
The aim of this article is to open a new way of understanding corruption by examining its place within the law and culture of the European semi-periphery, with a focus on inter-war Romania. My intention is to operate a twofold displacement of the analysis of the anti-corruption and the status of constitutional practice in this context. First, I aim to reposition the question of political corruption within a jurisprudential and legal historical context. In this way I inquire what is the legal theoretical importance of political corruption in a post-dependency context? In other words, what can the representation of corruption entail for law, and for a particular legal historical trajectory within the European periphery. Second, I move towards exploring the context of the inter-war period as well as the discursive construction of political corruption within the law and through the fascist criticism levelled against it.
The Court of Justice of the European Union has been criticised increasingly for its approach to international law. While much literature focuses on reluctance to apply international law (ie refusing direct effect), this criticism also includes interpretation, arguably a more contentious area. The Court interprets international treaties through either the Vienna Convention or its own teleological method, with the latter increasingly applied. The legitimacy of applying localised methods of interpretation to international treaty law is debated in scholarship. Whether the Court’s case law applying international law is Völkerrechtsfreundlichkeit (friendliness to international law) is the focus of most contributions in this area. This Article seeks to move beyond that debate by demonstrating the Court should in all instances seek to achieve the legal imperatives of certainty and justice. It is explained that justice divides into ‘thin’ and ‘thick’ forms. Whilst ‘thin’ justice is widely accepted and amounts to treating like cases alike, substantive (‘thick’ justice) outcomes are inherently debatable. The Article proves the Court is failing to clearly distinguish cases (‘thin’ justice) and that case law is uncertain. There are also significant questions concerning ‘thick’ justice. The Court has been subject to criticism for substantive outcomes in this area, with the Commission and Council even seeking to limit its role. With case law that is uncertain and appears unjust it is argued that there is failure in this ‘integral part of EU law.’ The Court is now under increased pressure, and it is uncertain how it will respond. There are certainly cautionary lessons to be learned concerning the importance of paying proper attention to justice and certainty for EU law as a whole, and beyond.
The introduction presents key ideas and terminology and answers several questions that will help readers understand the other chapters in the volume. It also explains important distinctions around the concept of biblical law and the pitfalls of reading it from a modern perspective.
This chapter analyzes private criminal settlements through the lens of blackmail law. Private criminal settlements meet the definition of blackmail in every state, but there are reasons to think that they should be made legal. First, the theoretical justification for the crime of blackmail is relatively weak, and it is even weaker in the case of private criminal settlements. The chapter concludes by arguing that there are only two dangers that may arise from allowing private criminal settlements: first, that the blackmailer will become an accomplice after the fact and, second, that the blackmailer may be violating a moral or statutory duty to report the crime. However, these dangers could be alleviated by (1) increasing the punishments (and thus the deterrence level) for actively concealing criminal activity and (2) criminalizing any attempt to blackmail using incriminating information if the blackmailer has a statutory duty to report the crime in question.
Much has been written about the legitimacy of international criminal law and the International Criminal Court. The underlying problem of what would constitute legitimacy or authority for the Court is rarely explored. This work seeks to deal with the issue by exploring the concept of authority and seeking to provide a theory of authority of international criminal law. The overarching intention of the work is to contribute to a more focused debate on the reasons for the Court’s perceived and actual lack of legitimacy.