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This book presents a new explication of David Hume's moral and political theory. With Hume, the book holds that our normative views can be scientifically explained but they cannot be justified as true. Hume argued for the psychological basis of such views. In particular, he argued for sympathy as the mirroring of the psychological sensations and emotions of others. By placing Hume in the developing tradition of social science, as a strong forerunner of his younger friend Adam Smith, the book demonstrates Hume's strong strategic sense, his nascent utilitarianism, his powerful theory of convention as a main source of social and political order, and his recognition of moral and political theory as a single enterprise.
Goethe is said to have likened the Roman civil law to a duck: sometimes it is visible, swimming prominently on the surface of the water, at other times it is hidden, diving amid the depths. but it is always there. This may be said to be true not only in continental Europe and Scotland, where Roman law has been a dominant influence, but also in England and the U.S.A., where Roman law has often informed and supplemented Common law. None of the great writers on Common law, with the exception perhaps of Coke, failed to take Roman law in to consideration, especially on the matters of legal theory. Indeed the differences between the two systems can easily be exaggerated. Ne one is better qualified to write on these matters than Peter Stein; this collection of his articles covers both the nature and the tradition of Roman law and ranges from classical to modern times. The Character and Influence of the Roman Civil Law includes discussions of the ethos and principles of Roman law and of their transmission and transformation in medieval and modern times. Attention is drawn to the working of Roman law in San Marinom which retains the uncodified ius commune.Civil lawyers in England whose work is examined include Vacarius, Thomas Smith and Thomas Legge. Roman law in Scotland is looked at in depth, with special consideration for the natural law tradtition there. A piece on the origin of the four stage theory of social development, which grew out of that tradition and was adopted by Adam Smith, appears for the first time. Finally Professor Stein shows the attraction of Roman law to lawyers in the U.S.A. when they were trying to establish their own legal system following Independence.
This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.
Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.
A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.
I argue in this essay that the popular “descriptive” approach to jurisprudence can be modeled after attempts at explaining natural phenomena by scientists. I present four assumptions that are underlying this approach to jurisprudence, which are similar to those of natural scientists. I then argue, however, that in the case of jurisprudence (and unlike the natural sciences) these assumptions contradict each other. After presenting my case I respond to several potential replies to my argument. If my arguments are correct, this shows that jurisprudential descriptivism is not just, as some have argued, unimportant, but rather that it is impossible. The suggests that those who claim to offer an account of the “nature” of law are in fact doing something else.
The Reception of Analytic Jurisprudence: The Victorian Debate on the Separation of Law and Morality, 1860–1900
- Cosgrove
Evaluation and Legal Theory
- Julie Dickson
The Reception of Analytic Jurisprudence: The Victorian Debate on the Separation of Law and Morality
- Richard A Cosgrove
/1994) The Concept of Law
- H L A Hart
Ethics in the Public Domain, rev
- Joseph Raz