Knowing What the Law Is

Legal Theory in a New Key

Alexander Somek

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509951307
• Edition: 1
• Topic: Droit
• Subtopic: Jurisprudence

This book provides a selective and somewhat cheeky account of prominent positions in legal theory, such as American legal realism, modern legal positivism, sociological systems theory, institutionalism and critical legal studies. It presents a relational approach to law and a new perspective on legal sources. The book explores topics of legal theory in a playful manner. It is written and composed in a way that refutes the widespread prejudice that legal theory is a dreary subject, with a cast of characters that occasionally interact in order to illustrate the claims of the book. Legal experts claim to know what the law is. Legal theory-or jurisprudence-explores whether such claims are warranted. The discipline first emerged at the turn of the 20th century, when the self-confidence of both legal scholarship and judicial craftsmanship became severely shattered, but the crisis continues to this day.

Index

A

Alexy, R.

injustice of law here

principles as optimisation rules here

American legal realism

authority of law as part of morality here

circular concepts here

comprehensive form of reductionism here

focus on causal forces here

judicial observance of rules here

objection to the prediction theory here

pragmatic approach to the determination of real law here

principles of legality here

reconstructive task of jurisprudence here

relationship between ‘stimulus’ and ‘response’ here

replacement of formalism here, here

‘transcendental nonsense’ here

Austin, J.

authority of law independent of morality here

bindingness of the law here

command theory here, here, here

failure to perceive the problem of formalism here

understanding of legal obligation here

Authority of law

authority based on morality compared here

Dworkin’s alternative approach to positivism here

formalism here

modern legal positivism here, here

service conception (Raz) here

B

Balkin, J. here

Basic Norm here–here, here–here

Bergbohm, K. here

C

Cohen, F.S.

main representative of American legal realism here

moral objectives here

pragmatic approach to the determination of real law here, here

‘transcendental nonsense’ here

Command theory here, here, here

Common law

relation to community morality here

fragmentation of reasoned decisions here

‘Conceptual jurisprudence’ here, here, here

Concrete legal concepts here

Constitutional theory

work of Carl Schmitt here

Critical Legal Studies

‘all law is politics’ here

crisis of confidence for practical reason here

detachment of knowledge from law as an object of study here

embrace of individual freedom here

emphasis on indeterminacy of law here

‘individualistic’ and ‘altruistic’ ways of thinking in private law here

relevance of moral insight for legal knowledge here

‘rule-choices’ here

Customary law

formalism here

modern legal positivism here

sources of law here

D

De Saussure, F. here

Discretion

American legal realism here

Dworkin’s theory of rights here, here

formalism here, here

Kelsen’s approach here

modern legal positivism here

work of Carl Schmitt here, here

Due process here, here

Dworkin, R.

application of rules here

characterisation of legal positivism here

dismantling of legal positivism here

exercise of judgement as key here

law as integrity here

law as self-reflective process of constructive interpretation here

legal knowledge here

post-positivism here

principles and policies distinguished here

relevance of principles here

response of German legal theory here

...