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Abstract
The aim of my comment on William Twining's recent book Globalisation and Legal Scholarship (2011) is to present and contrast two models of general (or universal) jurisprudence: the one favoured by Twining and the other adopted by Jeremy Bentham. Twining's model aims to be general by capturing the great variety of laws as they exist in the world; by contrast, Bentham argued that it is mostly prescriptive claims about law that can be universal. I argue that the descriptive model suffers from serious flaws: it either has to posit arbitrary boundaries between law and non-law (this is the problem from which HLA Hart's version of descriptive jurisprudence suffers) or it does away with all boundaries, resulting in a shapeless barrage of data (this is the problem with Twining's version of this model). By contrast, I argue, the Benthamite version of general jurisprudence is free from these problems. I then argue that Twining's descriptive approach leads him to various prescriptive recommendations, which I believe are unattractive.
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This book explores how globalisation influences the understanding of law. Adopting a broad concept of law and a global perspective, it critically reviews mainstream Western traditions of academic law and legal theory. Its central thesis is that most processes of so-called ‘globalisation’ take place at sub-global levels and that a healthy cosmopolitan discipline of law should encompass all levels of social relations and the legal ordering of these relations. It illustrates how the mainstream Western canon of jurisprudence needs to be critically reviewed and extended to take account of other legal traditions and cultures. Written by one of the foremost scholars in the field, this important work presents an exciting alternative vision of jurisprudence. It challenges the traditional canon of legal theorists and guides the reader through a field undergoing seismic changes in the era of globalisation. This is essential reading for all students of jurisprudence and legal theory. • Presents a coherent overview of the implications of globalisation for academic law and legal theory and a new vision of post-millennium general jurisprudence • Provides a critical introduction to the new generation of legal theorists concerned with globalisation and introduces four (neglected) southern-hemisphere jurists • Links mainstream jurists, such as Bentham, Hohfeld, Hart and Rawls, to the global context, thus offering a stimulating and provoking view of jurisprudence that challenges mainstream theories from a global perspective
1. The Framework 2. Law and Society in Western Legal and Social Theory 3. Loosening the Hold of the Mirror Thesis 4. Against the Mirror Thesis 5. A Socio-Legal Positivist Approach to Law 6. A Non-Essentialist Legal Pluralism 7. Elements of a General Jurisprudence Index
Although India and Israel differ dramatically in size, population, and affluence, there are many important similarities. Each is the contemporary vehicle of an old and resilient civilization that expresses a distinctive, influential and enduring arrangement of the various facets of human experience. Each of these cultures underwent a prolonged colonial experience in which its traditions were disrupted and subordinated to a hegemonic European Christian culture; each had an earlier experience with victorious, expansive Islam; each has reached an uneasy but flourishing accommodation with the secular, scientific modernity of the West.
In each case this was achieved by a movement that embraced “Enlightenment” values and in turn provoked a recoil from modernity/rediscovery of tradition. In each there is a conflict between those with “modern” secular views of civil society and those revivalists or fundamentalists who seek to restore an indigenous religiously based society. The secular nationalism that predominated in the struggle for independence and the formation of the state is now countered by powerful tides of fundamentalism.
Cambridge Core - Texts in Political Thought - Bentham: A Fragment on Government - edited by Ross Harrison
Jurisprudential Disagreements and Descriptivism' (2014) 8 Problema 483; Dan Priel
- See Dan Priel
Academic Law and Legal Philosophy: The Signifcance of Herbert Hart' (1979) 95 Law Quarterly Review
- See William Twining
The remnants still found in his account were then studiously removed in the work of his followers. See ibid
- See Dan Priel
See also Twining, General Jurisprudence (n 6) 125-6 for criticism of ‘post-Enlightenment secularism’ as parochial and a call for a ‘genuinely cosmopolitan general jurisprudence
- Cf Twining
On Exactitude in Science' in Andrew Hurley (trans), Collected Fictions (Penguin, 1998) 325
- Jorge Luis Borges
The Great Juristic Bazaar' (1976) 14 Journal of the Society of the Public Teachers of Law 185
- William Twining
The Globalization of American Law' (2004) 58 International Organization 103 (arguing that there has been a shift in ‘advanced industrialized democracies’ towards ‘American legal style’); Daniel W Drezner, ‘Globalization and Policy Convergence' (2001) 3 International Studies Review 53
- Eric C See Eg R Daniel Keleman
- Sibbitt
Consciousness Explained (Penguin, 1991) 454
- C Daniel
- Dennett
3) 239. He also famously called his book an essay in ‘descriptive sociology
- Hart
Jeremy Bentham and HLA Hart's “Utilitarian Tradition in Jurisprudence
- See Philip Schofeld
On some of the problems with personal law in two jurisdictions see Marc Galanter and Jayanth Krishnan, ‘Personal Law and Human Rights in India and Israel